Exhibit 10.2






Exhibit 10.2




SENIOR SECURED TERM LOAN AGREEMENT




DATED AS OF MARCH 10, 2008




by and among




GOLDENBOY ACQUISITION CORP.,




AS BORROWER,




COGDELL SPENCER, INC.,




AS A GUARANTOR,




KEYBANK NATIONAL ASSOCIATION,




THE OTHER LENDERS WHICH ARE PARTIES TO THIS AGREEMENT




and




OTHER LENDERS THAT MAY BECOME




PARTIES TO THIS AGREEMENT,




KEYBANK NATIONAL ASSOCIATION,




AS AGENT,




BANK OF AMERICA, N.A.,




AS SYNDICATION AGENT,




WACHOVIA BANK, NATIONAL ASSOCIATION




and




BRANCH BANKING AND TRUST COMPANY,




AS CO-DOCUMENTATION AGENTS




and




KEYBANC CAPITAL MARKETS,

AS SOLE LEAD ARRANGER AND SOLE BOOK MANAGER




 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 

	§1.

	 	DEFINITIONS AND RULES OF INTERPRETATION
	 	 	1	 
	 

	 	§1.1
	 	Definitions
	 	 	1	 
	 

	 	§1.2
	 	Rules of Interpretation
	 	 	20	 
	§2.

	 	THE CREDIT FACILITY
	 	 	21	 
	 

	 	§2.1
	 	Loans
	 	 	21	 
	 

	 	§2.2
	 	Interest on Loans
	 	 	22	 
	 

	 	§2.3
	 	Funds for Loans
	 	 	22	 
	 

	 	§2.4
	 	Use of Proceeds
	 	 	23	 
	 

	 	§2.5
	 	Extension of Maturity Date
	 	 	23	 
	§3.

	 	REPAYMENT OF THE LOANS
	 	 	24	 
	 

	 	§3.1
	 	Stated Maturity
	 	 	24	 
	 

	 	§3.2
	 	Mandatory Prepayments
	 	 	24	 
	 

	 	§3.3
	 	Optional Prepayments
	 	 	24	 
	 

	 	§3.4
	 	Partial Prepayments
	 	 	24	 
	 

	 	§3.5
	 	Effect of Prepayments
	 	 	24	 
	§4.

	 	CERTAIN GENERAL PROVISIONS
	 	 	24	 
	 

	 	§4.1
	 	Conversion Options
	 	 	24	 
	 

	 	§4.2
	 	Fees
	 	 	25	 
	 

	 	§4.3
	 	Funds for Payments
	 	 	25	 
	 

	 	§4.4
	 	Computations
	 	 	27	 
	 

	 	§4.5
	 	Suspension of LIBOR Rate Loans
	 	 	27	 
	 

	 	§4.6
	 	Illegality
	 	 	27	 
	 

	 	§4.7
	 	Additional Interest
	 	 	27	 
	 

	 	§4.8
	 	Additional Costs, Etc
	 	 	28	 
	 

	 	§4.9
	 	Capital Adequacy
	 	 	29	 
	 

	 	§4.10
	 	Breakage Costs
	 	 	29	 
	 

	 	§4.11
	 	Default Interest
	 	 	29	 
	 

	 	§4.12
	 	Certificate
	 	 	29	 
	 

	 	§4.13
	 	Limitation on Interest
	 	 	29	 
	 

	 	§4.14
	 	Certain Provisions Relating to Increased Costs
	 	 	30	 






i









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 

	§5.

	 	COLLATERAL SECURITY
	 	 	31	 
	 

	 	§5.1
	 	Collateral
	 	 	31	 
	 

	 	§5.2
	 	Additional Guarantors
	 	 	31	 
	 

	 	§5.3
	 	Release of Collateral and Guarantors
	 	 	31	 
	§6.

	 	REPRESENTATIONS AND WARRANTIES
	 	 	31	 
	 

	 	§6.1
	 	Corporate Authority, Etc
	 	 	31	 
	 

	 	§6.2
	 	Governmental Approvals
	 	 	32	 
	 

	 	§6.3
	 	Title to Properties; Etc
	 	 	32	 
	 

	 	§6.4
	 	Financial Statements
	 	 	33	 
	 

	 	§6.5
	 	No Material Changes
	 	 	33	 
	 

	 	§6.6
	 	Franchises, Patents, Copyrights, Etc
	 	 	33	 
	 

	 	§6.7
	 	Litigation
	 	 	33	 
	 

	 	§6.8
	 	No Material Adverse Contracts, Etc
	 	 	34	 
	 

	 	§6.9
	 	Compliance with Other Instruments, Laws, Etc
	 	 	34	 
	 

	 	§6.10
	 	Tax Status
	 	 	34	 
	 

	 	§6.11
	 	No Event of Default
	 	 	34	 
	 

	 	§6.12
	 	Investment Company Act
	 	 	34	 
	 

	 	§6.13
	 	Absence of Liens
	 	 	34	 
	 

	 	§6.14
	 	Labor Matters
	 	 	34	 
	 

	 	§6.15
	 	Setoff, Etc
	 	 	35	 
	 

	 	§6.16
	 	Certain Transactions
	 	 	35	 
	 

	 	§6.17
	 	Employee Benefit Plans
	 	 	35	 
	 

	 	§6.18
	 	Disclosure
	 	 	35	 
	 

	 	§6.19
	 	Trade Name; Place of Business
	 	 	36	 
	 

	 	§6.20
	 	Regulations T, U and X
	 	 	36	 
	 

	 	§6.21
	 	Environmental Matters
	 	 	36	 
	 

	 	§6.22
	 	Subsidiaries; Organizational Structure
	 	 	37	 
	 

	 	§6.23
	 	Contracts, Subcontracts, Etc
	 	 	37	 
	 

	 	§6.24
	 	Property
	 	 	37	 
	 

	 	§6.25
	 	Brokers
	 	 	37	 






ii









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 

	 

	 	§6.26
	 	Other Debt
	 	 	37	 
	 

	 	§6.27
	 	Solvency
	 	 	38	 
	 

	 	§6.28
	 	No Bankruptcy Filing
	 	 	38	 
	 

	 	§6.29
	 	No Fraudulent Intent
	 	 	38	 
	 

	 	§6.30
	 	Transaction in Best Interests of Borrower; Consideration
	 	 	38	 
	 

	 	§6.31
	 	Contribution Agreement
	 	 	38	 
	 

	 	§6.32
	 	OFAC
	 	 	38	 
	 

	 	§6.33
	 	No Prohibited Transaction
	 	 	39	 
	§7.

	 	AFFIRMATIVE COVENANTS
	 	 	39	 
	 

	 	§7.1
	 	Punctual Payment
	 	 	39	 
	 

	 	§7.2
	 	Maintenance of Office
	 	 	39	 
	 

	 	§7.3
	 	Records and Accounts
	 	 	39	 
	 

	 	§7.4
	 	Financial Statements, Certificates and Information
	 	 	39	 
	 

	 	§7.5
	 	Notices
	 	 	41	 
	 

	 	§7.6
	 	Existence; Maintenance of Properties
	 	 	43	 
	 

	 	§7.7
	 	Insurance
	 	 	43	 
	 

	 	§7.8
	 	Taxes; Liens
	 	 	43	 
	 

	 	§7.9
	 	Inspection of Properties and Books
	 	 	44	 
	 

	 	§7.10
	 	Compliance with Laws, Contracts, Licenses, and Permits
	 	 	44	 
	 

	 	§7.11
	 	Further Assurances
	 	 	44	 
	 

	 	§7.12
	 	Acquisition of Interest Rate Protection
	 	 	45	 
	 

	 	§7.13
	 	Business Operations
	 	 	45	 
	 

	 	§7.14
	 	Distributions of Income to the Borrower
	 	 	45	 
	§8.

	 	NEGATIVE COVENANTS
	 	 	45	 
	 

	 	§8.1
	 	Restrictions on Indebtedness
	 	 	46	 
	 

	 	§8.2
	 	Restrictions on Liens, Etc
	 	 	46	 
	 

	 	§8.3
	 	Restrictions on Investments
	 	 	48	 
	 

	 	§8.4
	 	Merger, Consolidation
	 	 	49	 
	 

	 	§8.5
	 	Compliance with Environmental Laws
	 	 	50	 
	 

	 	§8.6
	 	Distributions
	 	 	50	 






iii









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 

	 

	 	§8.7
	 	Asset Sales
	 	 	50	 
	 

	 	§8.8
	 	Restriction on Prepayment of Indebtedness
	 	 	50	 
	 

	 	§8.9
	 	Modifications to Certain Agreements
	 	 	51	 
	 

	 	§8.10
	 	Derivatives Contracts
	 	 	51	 
	 

	 	§8.11
	 	Transactions with Affiliates
	 	 	51	 
	 

	 	§8.12
	 	Equity Pledges
	 	 	51	 
	 

	 	§8.13
	 	Subordinated Debt
	 	 	51	 
	 

	 	§8.14
	 	Parent Restrictions
	 	 	51	 
	 

	 	§8.15
	 	Compliance with Covenants in Senior Revolving Loan Agreement
	 	 	52	 
	 

	 	§8.16
	 	More Restrictive Agreements
	 	 	52	 
	§9.

	 	FINANCIAL COVENANTS
	 	 	52	 
	 

	 	§9.1
	 	Minimum Adjusted Consolidated EBITDA
	 	 	52	 
	 

	 	§9.2
	 	Consolidated Senior Indebtedness to Adjusted Consolidated EBITDA
	 	 	52	 
	 

	 	§9.3
	 	Consolidated Total Indebtedness to Adjusted Consolidated EBITDA
	 	 	53	 
	 

	 	§9.4
	 	Adjusted Consolidated EBITDA to Consolidated Fixed Charges
	 	 	53	 
	§10.

	 	CLOSING CONDITIONS
	 	 	53	 
	 

	 	§10.1
	 	Loan Documents
	 	 	53	 
	 

	 	§10.2
	 	Certified Copies of Organizational Documents
	 	 	53	 
	 

	 	§10.3
	 	Resolutions
	 	 	53	 
	 

	 	§10.4
	 	Incumbency Certificate; Authorized Signers
	 	 	54	 
	 

	 	§10.5
	 	Opinion of Counsel
	 	 	54	 
	 

	 	§10.6
	 	Payment of Fees
	 	 	54	 
	 

	 	§10.7
	 	Acquisition; Acquisition Documents
	 	 	54	 
	 

	 	§10.8
	 	Performance; No Default
	 	 	54	 
	 

	 	§10.9
	 	Representations and Warranties
	 	 	54	 
	 

	 	§10.10
	 	Proceedings and Documents
	 	 	54	 
	 

	 	§10.11
	 	Compliance Certificate
	 	 	55	 
	 

	 	§10.12
	 	Interest Hedge
	 	 	55	 
	 

	 	§10.13
	 	Consents
	 	 	55	 
	 

	 	§10.14
	 	Senior Revolving Loan
	 	 	55	 






iv









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 

	 

	 	§10.15
	 	Existing MEA Loan Agreement
	 	 	55	 
	 

	 	§10.16
	 	Contribution Agreement
	 	 	55	 
	 

	 	§10.17
	 	Solvency Certificate
	 	 	55	 
	 

	 	§10.18
	 	Intercreditor Agreement
	 	 	55	 
	 

	 	§10.19
	 	Other
	 	 	55	 
	§11.

	 	EVENTS OF DEFAULT; ACCELERATION; ETC
	 	 	55	 
	 

	 	§11.1
	 	Events of Default and Acceleration
	 	 	55	 
	 

	 	§11.2
	 	Certain Cure Periods; Limitation of Cure Periods
	 	 	58	 
	 

	 	§11.3
	 	Termination of Commitments
	 	 	59	 
	 

	 	§11.4
	 	Remedies
	 	 	59	 
	 

	 	§11.5
	 	Distribution of Collateral Proceeds
	 	 	60	 
	§12.

	 	SETOFF
	 	 	60	 
	§13.

	 	THE AGENT
	 	 	61	 
	 

	 	§13.1
	 	Authorization
	 	 	61	 
	 

	 	§13.2
	 	Employees and Agents
	 	 	61	 
	 

	 	§13.3
	 	No Liability
	 	 	61	 
	 

	 	§13.4
	 	No Representations
	 	 	62	 
	 

	 	§13.5
	 	Payments
	 	 	62	 
	 

	 	§13.6
	 	Holders of Notes
	 	 	63	 
	 

	 	§13.7
	 	Indemnity
	 	 	64	 
	 

	 	§13.8
	 	Agent as Lender
	 	 	64	 
	 

	 	§13.9
	 	Resignation
	 	 	64	 
	 

	 	§13.10
	 	Duties in the Case of Enforcement
	 	 	64	 
	 

	 	§13.11
	 	Reliance on Hedge Provider
	 	 	65	 
	 

	 	§13.12
	 	Bankruptcy
	 	 	65	 
	 

	 	§13.13
	 	Reliance by Agent
	 	 	65	 
	 

	 	§13.14
	 	Approvals
	 	 	65	 
	 

	 	§13.15
	 	Borrower Not Beneficiary
	 	 	66	 
	 

	 	§13.16
	 	Intercreditor Agreement
	 	 	66	 
	§14.

	 	EXPENSES
	 	 	66	 






v









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 

	§15.

	 	INDEMNIFICATION
	 	 	67	 
	§16.

	 	SURVIVAL OF COVENANTS, ETC
	 	 	68	 
	§17.

	 	ASSIGNMENT AND PARTICIPATION
	 	 	68	 
	 

	 	§17.1
	 	Conditions to Assignment by Lenders
	 	 	68	 
	 

	 	§17.2
	 	Register
	 	 	69	 
	 

	 	§17.3
	 	New Notes
	 	 	69	 
	 

	 	§17.4
	 	Participations
	 	 	70	 
	 

	 	§17.5
	 	Pledge by Lender
	 	 	70	 
	 

	 	§17.6
	 	No Assignment by Borrower
	 	 	70	 
	 

	 	§17.7
	 	Disclosure
	 	 	70	 
	 

	 	§17.8
	 	Amendments to Loan Documents
	 	 	71	 
	 

	 	§17.9
	 	Titled Agents
	 	 	71	 
	§18.

	 	NOTICES
	 	 	71	 
	§19.

	 	RELATIONSHIP
	 	 	73	 
	§20.

	 	GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE
	 	 	73	 
	§21.

	 	HEADINGS
	 	 	73	 
	§22.

	 	COUNTERPARTS
	 	 	74	 
	§23.

	 	ENTIRE AGREEMENT, ETC
	 	 	74	 
	§24.

	 	WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS
	 	 	74	 
	§25.

	 	DEALINGS WITH THE BORROWER
	 	 	74	 
	§26.

	 	CONSENTS, AMENDMENTS, WAIVERS, ETC
	 	 	75	 
	§27.

	 	SEVERABILITY
	 	 	75	 
	§28.

	 	TIME OF THE ESSENCE
	 	 	76	 
	§29.

	 	NO UNWRITTEN AGREEMENTS
	 	 	76	 
	§30.

	 	REPLACEMENT NOTES
	 	 	76	 
	§31.

	 	NO THIRD PARTIES BENEFITED
	 	 	76	 
	§32.

	 	PATRIOT ACT
	 	 	77	 






vi









 






EXHIBITS AND SCHEDULES




	 	 	 
	Exhibit A

	 	FORM OF NOTE
	 
	 	 
	Exhibit B

	 	FORM OF JOINDER AGREEMENT
	 
	 	 
	Exhibit C

	 	FORM OF COMPLIANCE CERTIFICATE
	 
	 	 
	Exhibit D

	 	FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
	 
	 	 
	Exhibit E

	 	FORM OF ACKNOWLEDGMENT
	 
	 	 
	Schedule 1

	 	LENDERS AND COMMITMENTS
	 
	 	 
	Schedule 1.1

	 	SUBSIDIARY GUARANTORS
	 
	 	 
	Schedule 6.3

	 	LIST OF ALL ENCUMBRANCES ON ASSETS
	 
	 	 
	Schedule 6.7

	 	PENDING LITIGATION
	 
	 	 
	Schedule 6.16

	 	CERTAIN TRANSACTIONS
	 
	 	 
	Schedule 6.22

	 	SUBSIDIARIES AND UNCONSOLIDATED AFFILIATES
	 
	 	 
	Schedule 6.23

	 	CONTRACTS, SUBCONTRACTS & PAYMENT AND PERFORMANCE BONDS
	 
	 	 
	Schedule 6.26

	 	MATERIAL LOAN AGREEMENTS






vii









 






SENIOR SECURED TERM LOAN AGREEMENT




     THIS SENIOR SECURED TERM LOAN AGREEMENT (this “Agreement”) is made as of the 10th day of
March, 2008, by and among GOLDENBOY ACQUISITION CORP., a Wisconsin corporation (“Borrower”),
COGDELL SPENCER, INC., a Maryland corporation (“Parent”), KEYBANK NATIONAL ASSOCIATION (“KeyBank”),
the other lending institutions which are parties to this Agreement as “Lenders”, and the other
lending institutions that may become parties hereto pursuant to §17 (together with KeyBank, the
“Lenders”), KEYBANK NATIONAL ASSOCIATION, as Agent for the Lenders (the “Agent”), and KEYBANC
CAPITAL MARKETS, as Sole Lead Arranger and Sole Book Manager.



R E C I T A L S




     WHEREAS, Borrower, Parent, Cogdell Spencer, LP, a Delaware limited partnership (“Operating
Partnership”), MEA Holdings, Inc. (“Holdings”), Marshall Erdman & Associates, Inc., Marshall Erdman
Development, LLC and the “Seller Representative” referred to therein have entered into that certain
Agreement and Plan of Merger, dated as of January 23, 2008 (including all exhibits, annexes and
schedules thereto or referred to therein, as amended, supplemented or otherwise modified in
accordance with the terms of this Agreement, the “Acquisition Agreement”);



     WHEREAS, pursuant to the terms of the Acquisition Agreement, Borrower will merge with and into
Holdings, Holdings will be the surviving entity (the “Merger”), and Holdings will succeed to all
rights and obligations of Borrower by operation of law, and all references herein and in the other
Loan Documents to the terms “Borrower” shall thereupon be deemed to be references to Holdings as
the surviving entity of the Merger;



     WHEREAS, Borrower has requested that the Lenders provide a term loan facility to Borrower; and



     WHEREAS, the Agent and the Lenders are willing to provide such term loan facility to Borrower
on and subject to the terms and conditions set forth herein;



     NOW, THEREFORE, in consideration of the recitals herein and mutual covenants and agreements
contained herein, the parties hereto hereby covenant and agree as follows:



§1. DEFINITIONS AND RULES OF INTERPRETATION.




     §1.1 Definitions. The following terms shall have the meanings set forth in this §l or
elsewhere in the provisions of this Agreement referred to below:



     Acknowledgments. The Acknowledgments executed by a Subsidiary Guarantor in favor of
the Agent, acknowledging the pledge of Equity Interests in such Subsidiary Guarantor to Agent, such
Acknowledgments to be substantially in the form attached hereto as Exhibit E, as the same
may be modified, amended or restated.



     Acquisition. The acquisition by Parent, through the Borrower, of Holdings and its
Subsidiaries, for a total acquisition cost not in excess of Two Hundred Fifty-Three Million



 









 




Dollars ($253,000,000.00) and otherwise in accordance with the terms and conditions of the
Acquisition Agreement.




     Acquisition Agreement. As defined in the recitals hereto.



     Acquisition Documents. The Acquisition Agreement and all other documents, instruments
or agreements now or hereafter executed or delivered by or on behalf of the Parent, the Borrower or
any of their respective Subsidiaries in connection therewith, as amended, supplemented or otherwise
modified in accordance with this Agreement.



     Additional Guarantor. Each additional Subsidiary of Borrower which becomes a
Subsidiary Guarantor pursuant to §5.2.



     Adjusted Consolidated EBITDA. On any date of determination, the sum of (a) the
Consolidated EBITDA for the four (4) fiscal quarters most recently ended plus (b) (i)
investor management fees paid to private equity majority shareholders (Lubar & Co. and Baird
Capital Partners) prior to the Acquisition; (ii) salary and benefits paid to prior owner, Timothy
Erdman prior to the Acquisition; (iii) expenses related to the grant of stock options prior to the
Acquisition; (iv) expenses related to employee severance payments made prior to the Acquisition;
(v) expenses related to insurance settlement payments associated with the Cleveland Clinic that
were made prior to the Acquisition; (vi) expenses related to the planning and design of Marshall
Erdman & Associates, Inc.’s corporate headquarters (One Erdman Place) incurred prior to the
Acquisition; (vii) transaction fees, legal fees, bonuses to MEA management, and other expenses
incurred as a result of the Acquisition and paid in accordance with the Acquisition Agreement; and
(viii) expenses of the Parent and its Subsidiaries allocated to the Borrower or any of its
Subsidiaries that, prior to the Acquisition, were not expenses of the Borrower or any of its
Subsidiaries, to the extent such expenses referred to in this clause (viii) are in an amount not in
excess of seventy-five percent (75%) of the general and administrative expenses of Parent and its
Subsidiaries as reflected on the consolidated financial statements of Parent and its Subsidiaries
and a Compliance Certificate, delivered in accordance with §7.4.



     Affected Lender. See §4.15.



     Affiliate. An Affiliate, as applied to any Person, shall mean another Person that
directly, or indirectly through one or more intermediaries, Controls, or is Controlled by, or is
under common Control with, the Person specified.



     Agent. KeyBank National Association, acting as administrative agent for the Lenders,
and its successors and assigns.



     Agent’s Head Office. The Agent’s head office located at 127 Public Square, Cleveland,
Ohio 44114-1306, or at such other location as the Agent may designate from time to time by notice
to the Borrower and the Lenders.



     Agent’s Special Counsel. McKenna Long & Aldridge LLP or such other counsel as
selected by Agent.



2









 





     Agreement. This Senior Secured Term Loan Agreement, including the Schedules
and Exhibits hereto.



     Agreement Regarding Fees. See §4.2.



     Applicable Margin. On any date, the Applicable Margin set forth below based on the
ratio of the Consolidated Total Indebtedness of Borrower to the Adjusted Consolidated EBITDA of
Borrower:



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	LIBOR Rate	 	Base Rate
	Pricing Level	 	Ratio	 	Loans	 	Loans
	 

	Pricing Level 1

	 	Less than 3.50 to 1.00
	 	 	3.00	%	 	 	3.00	%
	 
	 	 	 	 	 	 	 	 	 	 
	Pricing Level 2

	 	Greater than or equal
to 3.50 to 1.00
	 	 	3.50	%	 	 	3.50	%





The initial Applicable Margin shall be at Pricing Level 2. The Applicable Margin shall not be
adjusted based upon such ratio, if at all, until the first (1st) day of the first
(1st) month following the delivery by Borrower to the Agent of the Compliance
Certificate at the end of a calendar quarter. In the event that Borrower shall fail to deliver to
the Agent a quarterly Compliance Certificate on or before the date required by §7.4(c), then
without limiting any other rights of the Agent and the Lenders under this Agreement, the Applicable
Margin shall be at Pricing Level 2 until such failure is cured within any applicable cure period,
in which event the Applicable Margin shall adjust, if necessary, on the first (1st) day
of the first (1st) month following receipt of such Compliance Certificate.



If the consolidated financial statements of Borrower and its Subsidiaries are revised, restated or
otherwise adjusted, and as a result thereof the Applicable Margin was calculated at a level which
resulted in lower pricing for any period, the Borrower shall within five (5) Business Days of such
determination pay to Agent for the account of the Lenders the amount of the excess that should have
been paid for such period.




     Arranger. KeyBanc Capital Markets or any successor.



     Assignment and Acceptance Agreement. See §17.1.



     Assignment of Hedge. An Assignment of Hedge Agreement by the Borrower to the Agent
for the benefit of the Lenders, as the same may be modified and amended, pursuant to which the
Interest Hedge described in §7.12 is pledged as security for the Obligations, and any financing
statements that may be delivered in connection therewith, such assignment to be in form and
substance satisfactory to Agent.



     Pledge Agreement. The Pledge Agreement dated as of even date herewith executed by
Borrower and Holdings in favor of Agent.



     Authorized Officer. Any of the following Persons: Frank C. Spencer, Charles M.
Handy, and such other Persons as Borrower shall designate in a written notice to Agent.



3









 





     Balance Sheet Date. December 31, 2007.



     Bankruptcy Code. Title 11, U.S.C.A., as amended from time to time or any successor
statute thereto.



     Base Rate. The greater of (a) the fluctuating annual rate of interest announced from
time to time by the Agent at the Agent’s Head Office as its “prime rate” or (b) one half of one
percent (0.5%) above the Federal Funds Effective Rate. The Base Rate is a reference rate and does
not necessarily represent the lowest or best rate being charged to any customer. Any change in the
rate of interest payable hereunder resulting from a change in the Base Rate shall become effective
as of the opening of business on the day on which such change in the Base Rate becomes effective,
without notice or demand of any kind.



     Base Rate Loans. Loans bearing interest calculated by reference to the Base Rate.



     Borrower. As defined in the preamble hereto.



     Breakage Costs. The cost to any Lender of re-employing funds bearing interest at
LIBOR, actually incurred (or reasonably expected to be actually incurred) in connection with (i)
any payment of any portion of the Loans bearing interest at LIBOR prior to the termination of any
applicable Interest Period, (ii) the conversion of a LIBOR Rate Loan to any other applicable
interest rate on a date other than the last day of the relevant Interest Period, or (iii) the
failure of Borrower to draw down, on the first day of the applicable Interest Period, any amount as
to which Borrower has elected a LIBOR Rate Loan.



     Business Day. Any day on which banking institutions located in the same city and
State as the Agent’s Head Office are located are open for the transaction of banking business and,
in the case of LIBOR Rate Loans, which also is a LIBOR Business Day.



     Capitalized Lease. A lease under which the discounted future rental payment
obligations of the lessee or the obligor are required to be capitalized on the balance sheet of
such Person in accordance with GAAP.



     Cash Equivalents. As of any date, (i) securities issued or directly and fully
guaranteed or insured by the United States government or any agency or instrumentality thereof
having maturities of not more than one year from such date, (ii) time deposits and certificates of
deposits having maturities of not more than one year from such date and issued by any domestic
commercial bank having, (A) senior long term unsecured debt rated at least A or the equivalent
thereof by S&P or A2 or the equivalent thereof by Moody’s and (B) capital and surplus in excess of
$100,000,000.00, (iii) commercial paper rated at least A-1 or the equivalent thereof by S&P or P-1
or the equivalent thereof by Moody’s and in either case maturing within one hundred twenty (120)
days from such date, and (iv) shares of any money market mutual fund rated at least AAA or the
equivalent thereof by S&P or at least Aaa or the equivalent thereof by Moody’s.



     Cash Management Documents. The Cash Management Agreement dated as of even date
herewith between the Borrower and the Agent, and each other document, instrument and agreement now
or hereafter executed or delivered by or on behalf of the Borrower or any of its Subsidiaries in
connection therewith.



4









 





     CERCLA. The Comprehensive Environmental Response, Compensation and Liability Act of
1980 (codified in scattered sections of 26 U.S.C.; 33 U.S.C.; 42 U.S.C. and 42 U.S.C. §9601 et
seq.), and its state and local equivalents, and regulations promulgated thereunder, and amendments
and successors to such statutes and regulations, as may be enacted and promulgated from time to
time.



     Change of Control. A Change of Control shall exist upon the occurrence of any of the
following:



          (a) any Person (including a Person’s Affiliates and associates) or group (as that term is
understood under Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) and the rules and regulations thereunder) shall have acquired beneficial ownership (within
the meaning of Rule 13d-3 under the Exchange Act) of a percentage (based on voting power, in the
event different classes of stock shall have different voting powers) of the voting stock of Parent
equal to at least thirty-three percent (33%);




          (b) as of any date a majority of the Board of Directors or Trustees (the “Board”) of Parent
consists of individuals who were not either (i) directors or trustees of Parent as of the
corresponding date of the previous year, or (ii) selected or nominated to become directors or
trustees by the Board of Parent of which a majority consisted of individuals described in clause
(b)(i) above, or (iii) selected or nominated to become directors or trustees by the Board of Parent
of which a majority consisted of individuals described in clause (b)(i) above and individuals
described in clause (b)(ii), above (excluding, in the case of both clause (b)(ii) and clause
(b)(iii), any individual whose initial nomination for, or assumption of office as, a member of the
Board of Parent occurs as a result of an actual or threatened solicitation of proxies or consents
for the election or removal of one or more directors or trustees by any person or group other than
a solicitation for the election of one or more directors by or on behalf of the Board); or




          (c) the Borrower or Parent consolidates with, is acquired by, or merges into or with any
Person (other than a merger permitted by §8.4); or




          (d) Parent fails to own, directly or indirectly, at least one-hundred percent (100%) of the
economic, voting and beneficial interests in CS Business Trust I or CS Business Trust II; or




          (e) Parent or CS Business Trust I shall fail to be the sole general partner of Operating
Partnership; or




          (f) Operating Partnership fails to own, directly or indirectly, at least one hundred percent
(100%) of the economic, voting and beneficial interest of Borrower; or




          (g) the Borrower fails to own, directly or indirectly, free of any lien, encumbrance or other
adverse claim (other than any lien in favor of the Agent), at least one hundred percent (100%) of
the economic, voting and beneficial interest of each Subsidiary Guarantor (subject to the terms of
§5.3 regarding the release of Subsidiary Guarantors); or




          (h) if any three (3) of Scott A. Ransom, Brian L Happ, William L. Peel, Jr., Charles M. Handy
and Frank Spencer shall cease to be active on a daily basis in the management




5









 







of Parent or the Borrower whether due to death, disability or otherwise, provided that, it
shall not be a “Change of Control” if a replacement executive of comparable experience and
reasonably satisfactory to the Agent shall have been retained within three (3) months of such
event.




     Closing Date. The date of this Agreement.



     Code. The Internal Revenue Code of 1986, as amended.



     Collateral. All of the property, rights and interests of the Borrower and each
Guarantor which are subject to the security interests, security title, liens and mortgages created
by the Security Documents.



     Commitment. With respect to each Lender, the Term Loan Commitment of such Lender.



     Commitment Percentage. With respect to each Lender, the percentage set forth on
Schedule 1 hereto as such Lender’s percentage of the Total Commitment, as the same may be
changed from time to time in accordance with the terms of this Agreement.



     Compliance Certificate. See §7.4(c).



     Consolidated. With reference to any term defined herein, that term as applied to the
accounts of a Person and its Subsidiaries, determined on a consolidated basis in accordance with
GAAP.



     Consolidated EBITDA. With respect to any period, an amount equal to the EBITDA of
Borrower and its Subsidiaries for such period determined on a Consolidated basis.



     Consolidated Fixed Charges. For any period, the sum of (a) Consolidated Interest
Expense for such period, plus (b) all regularly scheduled principal payments made with
respect to Indebtedness of the Borrower and its Subsidiaries during such period, other than any
balloon, bullet or similar principal payment which repays such Indebtedness in full, plus
(c) all Preferred Distributions for such period. Such Person’s Equity Percentage in the Fixed
Charges of its Unconsolidated Affiliates shall be included in the determination of Fixed Charges.



     Consolidated Interest Expense. For any period, without duplication, (a) total
Interest Expense of Borrower and its Subsidiaries determined on a consolidated basis in accordance
with GAAP for such period, plus (b) such Person’s Equity Percentage of Interest Expense of
its Unconsolidated Affiliates for such period.



     Consolidated Senior Indebtedness. Consolidated Total Indebtedness less
Subordinated Debt of the Borrower and its Subsidiaries on a Consolidated basis (including, without
duplication, such Person’s Equity Percentage of the Subordinated Debt of its Unconsolidated
Affiliates).



     Consolidated Total Indebtedness. All indebtedness of Borrower and its Subsidiaries
determined on a Consolidated basis and all Indebtedness of Borrower and its Subsidiaries determined
on a Consolidated basis, whether or not so classified. Consolidated Total



6









 




Indebtedness shall include (without duplication), such Person’s Equity Percentage of the
foregoing of its Unconsolidated Affiliates.




     Construction Work. The portion of the design and construction work, whether performed
by general contractor or a subcontractor, consisting of the provision of labor, materials,
equipment and services in connection with the construction of a Project.



     Contract. Any design/build, construction or similar agreement to which the Borrower or
any of its Subsidiaries is a party as general contractor, project manager or similar role, together
with all other related agreements, instruments and documents relating to the design and/or
construction of a Project, including any related Subcontract, and any and all amendments,
supplements or other modifications thereto in accordance with the terms of this Agreement.



     Contribution Agreement. That certain Contribution Agreement dated of even date
herewith among the Borrower, the Guarantors and each Additional Guarantor which may hereafter
become a party thereto, as the same may be modified, amended or ratified from time to time.



     Control. The possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability to exercise voting
power, by contract or otherwise. “Controlling” and “Controlled” have meanings
correlative thereto.



     Conversion/Continuation Request. A notice given by the Borrower to the Agent of its
election to convert or continue a Loan in accordance with §4.1.



     CS Business Trust I. CS Business Trust I, a Maryland business trust, the general
partner of Operating Partnership.



     CS Business Trust II. CS Business Trust II, a Maryland business trust, a limited
partner of Operating Partnership.



     Default. See §11.1.



     Default Rate. See §4.11.



     Delinquent Lender. See §13.5(c).



     Derivatives Contract. Any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement. Not in limitation of the foregoing, the term
“Derivatives Contract” includes any and all transactions of any kind, and the



7









 




related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement, including any
such obligations or liabilities under any such master agreement. Notwithstanding anything to the
contrary, the term “Derivatives Contract” shall not include rate-lock provisions with respect to
long-term mortgage contracts.




     Derivatives Termination Value. In respect of any one or more Derivatives Contracts,
after taking into account the effect of any legally enforceable netting agreement relating to such
Derivatives Contracts, (a) for any date on or after the date such Derivatives Contracts have been
closed out and termination value(s) determined in accordance therewith, such termination value(s),
and (b) for any date prior to the date referenced in clause (a) the amount(s) determined as the
mark-to-market value(s) for such Derivatives Contracts, as determined based upon one or more
mid-market or other readily available quotations provided by any recognized dealer in such
Derivatives Contracts (which may include the Agent or any Lender).



     Distribution. Any (a) dividend or other distribution, direct or indirect, on account
of any Equity Interest of Parent, the Borrower, or any of their respective Subsidiaries now or
hereafter outstanding, except a dividend payable solely in Equity Interests of identical class to
the holders of that class; (b) redemption, conversion, exchange, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct or indirect, of any Equity
Interest of Parent, the Borrower or any of their respective Subsidiaries now or hereafter
outstanding; and (c) payment made to retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire any Equity Interests of Parent, the Borrower, or any
of their respective Subsidiaries now or hereafter outstanding.



     Dollars or $. Dollars in lawful currency of the United States of America.



     Domestic Lending Office. Initially, the office of each Lender designated as such on
Schedule 1 hereto; thereafter, such other office of such Lender, if any, located within the
United States that will be making or maintaining Base Rate Loans.



     Drawdown Date. The date on which any Loan is made, and the date on which any Loan
which is made prior to the Maturity Date is converted in accordance with §4.1.



     EBITDA. With respect to a Person for any period (without duplication): (a) net income
(or loss) of such Person for such period determined on a consolidated basis in accordance with GAAP
(which shall include a deduction for bad debt expenses of such Person consistent with existing
practices), exclusive of the following (but only to the extent included in the determination of
such net income (loss)): (i) non-cash depreciation and amortization expense; (ii) interest
expense; (iii) income tax expense; (iv) extraordinary or non-recurring gains and losses; (v)
distributions to minority owners; and (vii) one-time non-cash items approved by Agent; plus (b)
such Person’s pro rata share of EBITDA determined in accordance with clause (a) above of its
Unconsolidated Affiliates.



8









 





     Employee Benefit Plan. Any employee benefit plan within the meaning of §3(3) of ERISA
that is subject to Title IV of ERISA maintained or contributed to by either of the Borrower or any
ERISA Affiliate, other than a Multiemployer Plan.



     Environmental Laws. Any federal, state or local statute, regulation or ordinance or
any judicial or administrative decree or decision, whether now existing or hereinafter enacted,
promulgated or issued, with respect to any Hazardous Substances, mold, drinking water, groundwater,
wetlands, landfills, open dumps, storage tanks, underground storage tanks, solid waste, waste
water, storm water run-off, waste emissions or wells. Without limiting the generality of the
foregoing, the term shall encompass each of the following statutes and their state and local
equivalents, and regulations promulgated thereunder, and amendments and successors to such statutes
and regulations, as may be enacted and promulgated from time to time: (i) CERCLA; (ii) the
Resource Conservation and Recovery Act of 1976 (42 U.S.C. §6901 et seq.); (iii) the Hazardous
Materials Transportation Act (49 U.S.C. §1801 et seq.); (iv) the Toxic Substances Control Act (15
U.S.C. §2061 et seq.); (v) the Clean Water Act (33 U.S.C. §1251 et seq.); (vi) the Clean Air Act
(42 U.S.C. §7401 et seq.); (vii) the Safe Drinking Water Act (21 U.S.C. §349; 42 U.S.C. §201 and
§300f et seq.); (viii) the National Environmental Policy Act of 1969 (42 U.S.C. §4321); (ix) the
Superfund Amendment and Reauthorization Act of 1986 (codified in scattered sections of 10 U.S.C.,
29 U.S.C., 33 U.S.C. and 42 U.S.C.); and (x) Title III of the Superfund Amendment and
Reauthorization Act (40 U.S.C. §1101 et seq.).



     Equity Interests. With respect to any Person, any share of capital stock of (or other
ownership or profit interests in) such Person, any warrant, option or other right for the purchase
or other acquisition from such Person of any share of capital stock of (or other ownership or
profit interests in) such Person, any security convertible into or exchangeable for any share of
capital stock of (or other ownership or profit interests in) such Person or warrant, right or
option for the purchase or other acquisition from such Person of such shares (or such other
interests), and any other ownership or profit interest in such Person (including, without
limitation, partnership, member or trust interests therein), whether voting or nonvoting, and
whether or not such share, warrant, option, right or other interest is authorized or otherwise
existing on any date of determination.



     Equity Percentage. The aggregate ownership percentage of the Borrower, the Guarantors
or their respective Subsidiaries in each Unconsolidated Affiliate.



     ERISA. The Employee Retirement Income Security Act of 1974, as amended and in effect
from time to time.



     ERISA Affiliate. Any Person which is treated as a single employer with the Borrower,
the Guarantors or their respective Subsidiaries under §414 of the Code.



     ERISA Reportable Event. A reportable event with respect to a Guaranteed Pension Plan
within the meaning of §4043 of ERISA and the regulations promulgated thereunder as to which the
requirement of notice has not been waived.



     Event of Default. See §11.1.



9









 





     Existing MEA Loan Agreement. That certain Loan Agreement, dated June 29, 2007,
between Holdings, Marshall Erdman & Associates, Inc. and M&I Marshall & Ilsley Bank.



     Extension Request. See §2.5(a).



     Federal Funds Effective Rate. For any day, the rate per annum (rounded upward to the
nearest one-hundredth of one percent (1/100 of 1%)) announced by the Federal Reserve Bank of New
York on such day as being the weighted average of the rates on overnight federal funds transactions
arranged by federal funds brokers on the previous trading day, as computed and announced by such
Federal Reserve Bank in substantially the same manner as such Federal Reserve Bank computes and
announces the weighted average it refers to as the “Federal Funds Effective Rate.”



     GAAP. The generally accepted accounting principles in the United States set forth in
the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied.



     Guaranteed Pension Plan. Any employee pension benefit plan within the meaning of
§3(2) of ERISA maintained or contributed to by the Borrower or any ERISA Affiliate the benefits of
which are guaranteed on termination in full or in part by the PBGC pursuant to Title IV of ERISA,
other than a Multiemployer Plan.



     Guarantors. Collectively, Parent, CS Business Trust I, CS Business Trust II,
Operating Partnership, each Subsidiary Guarantor and each Additional Guarantor, and individually
any one of them.



     Guaranty. The Unconditional Guaranty of Payment and Performance dated of even date
herewith made by Parent, CS Business Trust I, CS Business Trust II, Operating Partnership and each
Subsidiary Guarantor in favor of the Agent and the Lenders, as the same may be modified, amended or
ratified.



     Hazardous Substances. Each and every element, compound, chemical mixture,
contaminant, pollutant, toxic substances, oil, material, waste or other substance which is defined,
determined or identified as hazardous or toxic under any Environmental Law. Without limiting the
generality of the foregoing, the term shall mean and include:



     (a) “hazardous substances” as defined in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, the Superfund Amendment and Reauthorization Act of 1986, or
Title III of the Superfund Amendment and Reauthorization Act, each as amended, and regulations
promulgated thereunder;



     (b) “hazardous waste” and “regulated substances” as defined in the Resource Conservation and
Recovery Act of 1976, as amended, and regulations promulgated thereunder;



10









 





     (c) “hazardous materials” as defined in the Hazardous Materials Transportation Act, as
amended, and regulations promulgated thereunder; and



     (d) “chemical substance or mixture” as defined in the Toxic Substances Control Act, as
amended, and regulations promulgated thereunder.



     Hedge Obligations. All obligations of the Borrower to any Lender or an Affiliate of a
Lender to make any payments (including, without limitation, any payments due upon a termination or
default) under any agreement with respect to an interest rate swap, collar, cap or floor or a
forward rate agreement or other agreement regarding the hedging of interest rate risk exposure
executed in connection with the satisfaction of the condition set forth in §7.12, and any
confirming letter executed pursuant to such hedging agreement, all as amended, restated or
otherwise modified. Nothing herein shall require the Borrower to obtain any such agreement from
any Lender or an Affiliate of a Lender.



     Holdings. MEA Holdings, Inc., a Wisconsin corporation.



     Indebtedness. With respect to a Person, at the time of computation thereof, all of
the following (without duplication): (a) all obligations of such Person in respect of money
borrowed (other than trade debt incurred in the ordinary course of business which is not more than
ninety (90) days past due); (b) all obligations of such Person, whether or not for money borrowed
(i) represented by notes payable, or drafts accepted, in each case representing extensions of
credit, (ii) evidenced by bonds, debentures, notes or similar instruments, or (iii) constituting
purchase money indebtedness, conditional sales contracts, title retention debt instruments or other
similar instruments, upon which interest charges are customarily paid or that are issued or assumed
as full or partial payment for property or services rendered; (c) obligation of such Person as a
lessee or obligor under a Capitalized Lease (but for the avoidance of doubt, not under any
operating lease); (d) all reimbursement obligations of such Person under any letters of credit or
acceptances (whether or not the same have been presented for payment); (e) all Off-Balance Sheet
Obligations of such Person; (f) all obligations of such Person in respect of any purchase
obligation, repurchase obligation, takeout commitment or forward equity commitment; (g) net
obligations under any Derivatives Contract not entered into as a hedge against existing
Indebtedness, in an amount equal to the Derivatives Termination Value thereof; (h) all obligations
of such Person to redeem, retire, defease or otherwise make any payment in respect of any
Mandatorily Redeemable Stock issued by such Person or any other Person, valued at the greater of
its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; (i) all
Indebtedness of other Persons which such Person has guaranteed or is otherwise recourse to such
Person (except for guaranties of customary exceptions for fraud, misapplication of funds,
environmental indemnities, violation of “special purpose entity” covenants, and other similar
exceptions to recourse liability until a claim is made with respect thereto, and then shall be
included only to the extent of the amount of such claim), including liability of a general partner
in respect of liabilities of a partnership in which it is a general partner which would constitute
“Indebtedness” hereunder, any obligation to supply funds to or in any manner to invest directly or
indirectly in a Person, to maintain working capital or equity capital of a Person or otherwise to
maintain net worth, solvency or other financial condition of a Person, to purchase indebtedness, or
to assure the owner of indebtedness against loss, including, without limitation, through an
agreement to purchase property, securities, goods, supplies or services for the purpose of



11









 




enabling the debtor to make payment of the indebtedness held by such owner or otherwise; (j)
all Indebtedness of another Person secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on property or assets owned by
such Person, even though such Person has not assumed or become liable for the payment of such
Indebtedness or other payment obligation; and (k) such Person’s pro rata share of the Indebtedness
(based upon its Equity Percentage in such Unconsolidated Affiliates) of any Unconsolidated
Affiliate of such Person.




     Indemnity Agreement. Any indemnity or similar agreement entered into by the Borrower
and/or any of its Subsidiaries relating to indemnification of one or more sureties in connection
with any claims made under a Payment or Performance Bond, including, without limitation, that
certain General Indemnity Agreement, dated July 29, 2005, from Holdings, Marshall Erdman &
Associates, Inc. and Marshall Edrman Development, LLC in favor of Arch Insurance Company, Arch
Reinsurance Company and their subsidiaries and affiliates.



     Intercreditor Agreement. The Intercreditor Agreement, dated as of the date hereof,
between the Agent and the Senior Revolving Loan Agent.



     Interest Hedge. See §7.12.



     Interest Expense. For any period, without duplication, (a) total interest expense
incurred (both expensed and capitalized) of the Borrower, the Subsidiary Guarantors and their
respective Subsidiaries on funded debt, including the portion of rents payable under a Capitalized
Lease allocable to interest expense in accordance with GAAP (but excluding capitalized interest
funded under a construction loan interest reserve account), determined on a consolidated basis in
accordance with GAAP for such period, plus (b) the Borrower’s, the Subsidiary Guarantors’ and their
respective Subsidiaries’ Equity Percentage of Interest Expense of their Unconsolidated Affiliates
for such period. Interest Expense shall not include Preferred Distributions.



     Interest Payment Date. As to each Base Rate Loan and each LIBOR Rate Loan, the first
(1st) day of each calendar month during the term of such Loan.



     Interest Period. With respect to each LIBOR Rate Loan (a) initially, the period
commencing on the Drawdown Date of such LIBOR Rate Loan and ending one, two, three or six months
(or such shorter period as may be approved by the Lenders) thereafter, and (b) thereafter, each
period commencing on the day following the last day of the next preceding Interest Period
applicable to such Loan and ending on the last day of one of the periods set forth above, as
selected by the Borrower in a Conversion/Continuation Request; provided that all of the
foregoing provisions relating to Interest Periods are subject to the following:



               (i) if any Interest Period with respect to a LIBOR Rate Loan would otherwise end on a day that
is not a LIBOR Business Day, such Interest Period shall end on the next succeeding LIBOR Business
Day, unless such next succeeding LIBOR Business Day occurs in the next calendar month, in which
case such Interest Period shall end on the next preceding LIBOR Business Day, as determined
conclusively (absent manifest error) by the Agent in accordance with the then current bank practice
in London;




12









 








               (ii) if the Borrower shall fail to give notice as provided in §4.1, the Borrower shall be
deemed to have requested a continuation of the affected LIBOR Rate Loan as a Base Rate Loan on
the last day of the then current Interest Period with respect thereto;




               (iii) any Interest Period pertaining to a LIBOR Rate Loan that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the last Business Day of the
applicable calendar month;




               (iv) any Interest Period pertaining to a LIBOR Rate Loan that begins on the first Business Day
of a calendar month shall end on the last Business Day of the applicable calendar month, unless the
last Business Day of such calendar month is not a LIBOR Business Day, in which case such Interest
Period shall end on the next succeeding LIBOR Business Day; and




               (v) no Interest Period relating to any LIBOR Rate Loan shall extend beyond the Maturity Date.




     Investments. With respect to any Person, all shares of capital stock, evidences of
Indebtedness and other securities issued by any other Person and owned by such Person, all loans,
advances, or extensions of credit to, or contributions to the capital of, any other Person, all
purchases of the securities or business or integral part of the business of any other Person and
commitments and options to make such purchases, all interests in real property, and all other
investments; provided, however, that the term “Investment” shall not include (i)
equipment, inventory and other tangible personal property acquired in the ordinary course of
business, or (ii) current trade and customer accounts receivable for services rendered in the
ordinary course of business and payable in accordance with customary trade terms. In determining
the aggregate amount of Investments outstanding at any particular time: (a) there shall be
included as an Investment all interest accrued with respect to Indebtedness constituting an
Investment unless and until such interest is paid; (b) there shall be deducted in respect of each
Investment any amount received as a return of capital; (c) there shall not be deducted in respect
of any Investment any amounts received as earnings on such Investment, whether as dividends,
interest or otherwise, except that accrued interest included as provided in the foregoing clause
(a) may be deducted when paid; and (d) there shall not be deducted in respect of any Investment any
decrease in the value thereof.



     Joinder Agreement. The Joinder Agreement with respect to the Guaranty and
Contribution Agreement to be executed and delivered pursuant to §5.2 by any Additional Guarantor,
such Joinder Agreement to be substantially in the form of Exhibit B hereto.



     KeyBank. As defined in the preamble hereto.



     Lenders. KeyBank, the other lending institutions which are party hereto and any other
Person which becomes an assignee of any rights of a Lender pursuant to §17 (but not including any
participant as described in §17).



     LIBOR. For any LIBOR Rate Loan for any Interest Period, the average rate (rounded
upwards to the nearest 1/16th) as shown in Reuters Screen LIBOR01 Page at which deposits in



13









 




U.S. dollars are offered by first class banks in the London Interbank Market at approximately
11:00 a.m. (London time) on the day that is two (2) LIBOR Business Days prior to the first day of
such Interest Period with a maturity approximately equal to such Interest Period and in an amount
approximately equal to the amount to which such Interest Period relates, adjusted for reserves and
taxes if required by future regulations. If such service no longer reports such rate or Agent
determines in good faith that the rate so reported no longer accurately reflects the rate available
to Agent in the London Interbank Market, Loans shall accrue interest at the Base Rate plus the
Applicable Margin. For any period during which a Reserve Percentage shall apply, LIBOR with
respect to LIBOR Rate Loans shall be equal to the amount determined above divided by an amount
equal to 1 minus the Reserve Percentage.




     LIBOR Business Day. Any day on which commercial banks are open for international
business (including dealings in Dollar deposits) in London, England.



     LIBOR Lending Office. Initially, the office of each Lender designated as such on
Schedule 1 hereto; thereafter, such other office of such Lender, if any, that shall be
making or maintaining LIBOR Rate Loans.



     LIBOR Rate Loans. Loans bearing interest calculated by reference to LIBOR.



     Lien. See §8.2.



     Loan Documents. This Agreement, the Notes, the Guaranty, the Security Documents, the
Cash Management Documents and all other documents, instruments or agreements now or hereafter
executed or delivered by or on behalf of the Borrower or any Guarantor in connection with the
Loans.



     Loan and Loans. The Term Loan.



     Mandatorily Redeemable Stock. With respect to any Person, any Equity Interest of such
Person which by the terms of such Equity Interest (or by the terms of any security into which it is
convertible or for which it is exchangeable or exercisable), upon the happening of any event or
otherwise (a) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise (other than an Equity Interest to the extent redeemable in exchange for common stock or
other equivalent common Equity Interests), (b) is convertible into or exchangeable or exercisable
for Indebtedness or Mandatorily Redeemable Stock, or (c) is redeemable at the option of the holder
thereof, in whole or in part (other than an Equity Interest which is redeemable solely in exchange
for common stock or other equivalent common Equity Interests).



     Material Adverse Effect. A material adverse effect on (a) the business, properties,
assets, condition (financial or otherwise) or results of operations of Parent, the Borrower and the
Subsidiary Guarantors (taken as a whole); (b) the ability of Borrower or any Guarantor to perform
any of its obligations under the Loan Documents; (c) the validity or enforceability of any of the
Loan Documents or the creation, perfection and priority of any Liens of Agent in the Collateral; or
(d) the rights or remedies of Agent or the Lenders under the Loan Documents.



     Material Subsidiary. Any existing or future Wholly Owned Subsidiary of the Borrower.



14









 





     Maturity Date. March ___, 2011, as the same may be extended by Borrower as provided in
§2.5, or such earlier date on which the Loans shall become due and payable pursuant to the terms
hereof.



     Merger. As defined in the recitals hereto.



     Moody’s. Moody’s Investor Service, Inc.



     Multiemployer Plan. Any multiemployer plan within the meaning of §3(37) of ERISA
maintained or contributed to by the Borrower or any ERISA Affiliate.



     Net Income (or Loss). With respect to any Person (or any asset of any Person) for any
period, the net income (or loss) of such Person (or attributable to such asset), determined in
accordance with GAAP.



     Non-Recourse Exclusions. With respect to any Non-Recourse Indebtedness of any Person,
any usual and customary exclusions from the non-recourse limitations governing such Indebtedness,
including, without limitation, exclusions for claims that (i) are based on fraud, intentional
misrepresentation, misapplication of funds, gross negligence or willful misconduct, (ii) result
from intentional mismanagement of or waste at the Real Property securing such Non-Recourse
Indebtedness, (iii) arise from the presence of Hazardous Substances on the Real Property securing
such Non-Recourse Indebtedness; (iv) are the result of any unpaid real estate taxes and assessments
(whether contained in a loan agreement, promissory note, indemnity agreement or other document); or
(v) result from the borrowing Subsidiary and/or its assets becoming the subject of a voluntary or
involuntary bankruptcy, insolvency or similar proceeding.



     Non-Recourse Indebtedness. With respect to a Person, (a) Indebtedness in respect of
which recourse for payment (except for Non-Recourse Exclusions until a claim is made with respect
thereto, and then such Indebtedness shall not constitute Non-Recourse Indebtedness only to the
extent of the amount of such claim) is contractually limited to specific assets of such Person
encumbered by a Lien securing such Indebtedness or (b) if such Person is a Single Asset Entity, any
Indebtedness of such Person. A loan secured by multiple properties owned by Single Asset Entities
shall be considered Non-Recourse Indebtedness of such Single Asset Entities even if such
Indebtedness is cross-defaulted and cross-collateralized with the loans to such other Single Asset
Entities.



     Notes. See §2.1(b).



     Notice. See §18.



     Obligations. All indebtedness, obligations and liabilities of the Borrower or any
Guarantor to any of the Lenders or the Agent, individually or collectively, under this Agreement or
any of the other Loan Documents or in respect of any of the Loans, the Notes, or other instruments
at any time evidencing any of the foregoing, whether existing on the date of this Agreement or
arising or incurred hereafter, direct or indirect, joint or several, absolute or contingent,
matured or unmatured, liquidated or unliquidated, secured or unsecured, arising by contract,
operation of law or otherwise.



15









 





     OFAC. Office of Foreign Asset Control of the Department of the Treasury of the United
States of America.



     Off-Balance Sheet Obligations. Liabilities and obligations of the Borrower, any
Subsidiary or any other Person in respect of “off-balance sheet arrangements” (as defined in the
SEC Off-Balance Sheet Rules) which Parent would be required to disclose in the “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” section of Parent’s
report on Form 10-Q or Form 10-K (or their equivalents) which Parent is required to file with the
SEC (or any governmental authority substituted therefore). As used in this definition, the term
“SEC Off-Balance Sheet Rules” means the Disclosure in Management’s Discussion and Analysis About
Off-Balance Sheet Arrangements, Securities Act Release No. 33-8182, 68 Fed. Reg. 5982 (Feb. 5,
2003) (codified at 17 CFR pts. 228, 229 and 249).



     Operating Partnership. As defined in the recitals hereto.



     Outstanding. With respect to the Loans, the aggregate unpaid principal thereof as of
any date of determination.



     Owner. Any Person party to a Contract acting as the sponsor, owner and/or operator of
a Project for whom the Borrower or any of its Subsidiaries is performing Construction Work
thereunder.



     Parent. As defined in the preamble hereto.



     Patriot Act. The Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001, as the same may be amended from time to
time, and corresponding provisions of future laws.



     Payment or Performance Bond. Any (a) payment bond issued by a surety which guarantees
the timely payment by the Borrower or any of its Subsidiaries for all labor, materials, supplies,
implements, machinery and equipment furnished with respect to any Construction Work under a
Contract or (b) any performance bonds issued by a surety which guarantee the timely performance by
the Borrower or any of its Subsidiaries of all Construction Work under a Contract.



     PBGC. The Pension Benefit Guaranty Corporation created by §4002 of ERISA and any
successor entity or entities having similar responsibilities.



     Permitted Liens. Liens, security interests and other encumbrances permitted by §8.2.



     Person. Any individual, corporation, limited liability company, partnership, trust,
unincorporated association, business, or other legal entity, and any government or any governmental
agency or political subdivision thereof.



     Plan Assets. Assets of any employee benefit plan subject to Part 4, Subtitle A, Title
I of ERISA.



16









 





     Preferred Distributions. For any period and without duplication, all Distributions
paid, declared but not yet paid or otherwise due and payable during such period on Preferred
Securities issued by the Borrower or any of its Subsidiaries. Preferred Distributions shall not
include dividends or distributions (a) paid or payable solely in Equity Interests of identical
class payable to holders of such class of Equity Interests; (b) paid or payable to the Borrower or
any of its Subsidiaries; or (c) constituting or resulting in the redemption of Preferred
Securities, other than scheduled redemptions not constituting balloon, bullet or similar
redemptions in full.



     Preferred Securities. With respect to any Person, Equity Interests in such Person,
which are entitled to preference or priority over any other Equity Interest in such Person in
respect of the payment of dividends or distribution of assets upon liquidation, or both.



     Pricing Level. Such term shall have the meaning established within the definition of
Applicable Margin.



     Project. Any health care facility or medical office building(s) designed and/or
constructed by the Borrower or any of its Subsidiaries in its capacity as general contractor,
project manager or similar role pursuant to a Contract, and by any Subcontractor(s) pursuant to one
or more Subcontracts, together with all on-site infrastructure, site improvements and appurtenances
to be designed, constructed and installed in connection therewith, and all demolitions in
connection therewith.



     Real Estate. All real property at any time owned or leased (as lessee or sublessee)
by the Borrower, any Guarantor or any of their respective Subsidiaries.



     Record. The grid attached to any Note, or the continuation of such grid, or any other
similar record, including computer records, maintained by the Agent with respect to any Loan
referred to in such Note.



     Recourse Indebtedness. As of any date of determination, any Indebtedness (whether
secured or unsecured) which is recourse to a Subsidiary of the Parent other than the Borrower or
any Guarantor which is a Subsidiary of the Borrower. Recourse Indebtedness shall not include
Non-Recourse Indebtedness.



     Register. See §17.2.



     REIT Status. With respect to Parent, its status as a real estate investment trust as
defined in §856(a) of the Code.



     Release. Any releasing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, disposing or dumping (other than the storing of materials in
reasonable quantities to the extent necessary for the operation of such property in the ordinary
course of business, and in any event in compliance with all Environmental Laws) of Hazardous
Substances on, upon, into or from the Real Estate.



     Required Lenders. As of any date, the Lender or Lenders whose aggregate Commitment
Percentage is greater than fifty percent (50.0%) of the Total Commitment; provided that in
determining said percentage at any given time, all then existing Delinquent Lenders will be



17









 




disregarded and excluded and the Commitment Percentages of the Lenders shall be redetermined
for voting purposes only to exclude the Commitment Percentages of such Delinquent Lenders.




     Reserve Percentage. For any Interest Period, that percentage which is specified three
(3) Business Days before the first day of such Interest Period by the Board of Governors of the
Federal Reserve System (or any successor) or any other governmental or quasi-governmental authority
with jurisdiction over Agent or any Lender for determining the maximum reserve requirement
(including, but not limited to, any marginal reserve requirement) for Agent or any Lender with
respect to liabilities constituting of or including (among other liabilities) Eurocurrency
liabilities in an amount equal to that portion of the Loan affected by such Interest Period and
with a maturity equal to such Interest Period.



     SEC. The federal Securities and Exchange Commission.



     Security Agreement. The Security Agreement, dated as of the date hereof, executed by
Borrower and certain of its Subsidiaries, in favor of the Agent.



     Security Documents. Collectively, the Guaranty, the Joinder Agreements, the Pledge
Agreement, the Acknowledgments, the Assignment of Hedge, the Security Agreement, UCC-1 financing
statements and any further collateral assignments by Borrower or any Guarantor to the Agent for the
benefit of the Lenders.



     Senior Revolving Agent. Bank of America, N.A., together with its successors and
assigns, in its capacity as “Agent” for the Senior Revolving Lenders under the Senior Revolving
Loan Documents.



     Senior Revolving Lenders. The lenders party to the Senior Revolving Loan Documents
from time to time.



     Senior Revolving Loan. The revolving loan or loans evidenced and secured by the
Senior Revolving Loan Documents, in an aggregate principal amount not to exceed One Hundred Fifty
Million Dollars ($150,000,000.00).



     Senior Revolving Loan Agreement. The Credit Agreement dated of even date herewith
among Operating Partnership, as borrower, the Senior Revolving Agent and the Senior Revolving
Lenders, as amended, supplemented or otherwise modified from time to time.



     Senior Revolving Loan Documents. The Senior Revolving Loan Agreement and all other
documents, instruments or agreements now or hereafter executed or delivered by or on behalf of the
borrower thereunder or any guarantor thereof in connection with the loans evidenced thereby, as
amended, supplemented or otherwise modified from time to time.



     Single Asset Entity. A bankruptcy remote, single purpose entity which is a Subsidiary
of Parent and which is not a Subsidiary Guarantor which owns real property and related assets which
are security for Indebtedness of such entity, and which Indebtedness does not constitute
Indebtedness of any other Person except as provided in the definition of Non-Recourse Indebtedness
(except for Non-Recourse Exclusions).



18









 





     S&P. Standard & Poor’s Ratings Group.



     State. A state of the United States of America and the District of Columbia.



     Subcontract. Any subcontract or any direct or indirect agreement between the Borrower
or any of its Subsidiaries and any Subcontractor for the performance of a portion of the design
and/or construction of a Project or the provision of labor, materials or other services required to
be performed by Borrower or any of its Subsidiaries, as general contractor, project manager or
similar role, under any Contract.



     Subcontractor. Any person who has entered into a direct or indirect arrangement with
the Borrower or any of its Subsidiaries, as general contractor, project manager or similar role
under a Contract, including any sub-subcontractor or other provider, for the provision of labor,
materials or other services to be performed by Borrower or any of its Subsidiaries, as general
contractor, project manager or similar role, under any Contract.



     Subordinated Debt. All Indebtedness of the Borrower or any of its Subsidiaries which
(a) has a maturity of not earlier than one year after the Maturity Date (as extended pursuant to
§2.5), is not recourse to any of the Guarantors, (c) is not secured by any assets of property of
the Borrower or any of its Subsidiaries, (d) does not contain any covenants or defaults other than
a requirement to maintain “good standing” and payment of such Indebtedness and (e) is subordinate
to the Obligations and the Hedge Obligations in right and time of payment pursuant to a
Subordination Agreement in form and substance satisfactory to Agent.



     Subordination Agreement. Each Subordination Agreement, by and among Agent, Borrower
or its Subsidiary and the holder of the Subordinated Debt relating to the Subordinate Debt, as the
same may be modified or amended.



     Subsidiary. For any Person, any corporation, partnership, limited liability company
or other entity of which at least a majority of the securities or other ownership interests having
by the terms thereof ordinary voting power to elect a majority of the board of directors or other
persons performing similar functions of such corporation, partnership, limited liability company or
other entity (without regard to the occurrence of any contingency) is at the time directly or
indirectly owned or controlled by such Person or one or more Subsidiaries of such Person or by such
Person and one or more Subsidiaries of such Person, and shall include all Persons the accounts of
which are consolidated with those of such Person pursuant to GAAP.



     Subsidiary Guarantor. Initially, those Persons described on Schedule 1.1
hereto and each Additional Guarantor. Upon any Additional Guarantor becoming a Subsidiary
Guarantor or upon the release of a Subsidiary Guarantor in accordance with the terms of this
Agreement, Agent may unilaterally amend Schedule 1.1.



     Term Loan. An individual loan or the aggregate loans, as the case may be, in the
maximum principal amount of One Hundred Million Dollars ($100,000,000.00) made by the Lenders to
the Borrower hereunder.



19









 





     Term Loan Commitment. As to each Lender, the amount equal to such Lender’s Commitment
Percentage of the aggregate principal amount of the Loans from time to time outstanding to
Borrower.



     Titled Agents. The Arranger, and any syndication agent or co-documentation agent.



     Total Commitment. The sum of the Commitments of the Lenders, as in effect from time
to time.



     Type. As to any Loan, its nature as a Base Rate Loan or a LIBOR Rate Loan.



     Unconsolidated Affiliate. In respect of any Person, any other Person in whom such
Person holds an Investment, (a) which Investment is accounted for in the financial statements of
such Person on an equity basis of accounting and whose financial results would not be consolidated
under GAAP with the financial results of such first Person on the consolidated financial statements
of such first Person, or (b) which is not a Subsidiary of such first Person.



     Unrestricted Cash and Cash Equivalents. As of any date of determination, the sum of
(a) the aggregate amount of Unrestricted cash and (b) the aggregate amount of Unrestricted Cash
Equivalents (valued at fair market value). As used in this definition, “Unrestricted” means the
specified asset is not subject to any escrow, reserves or Liens or claims of any kind in favor of
any Person (other than customary rights of depository institutions in the ordinary course of
business with respect to bank accounts).



     WIP Schedule. A work in process schedule reflecting, among other things the financial
status of all Construction Work being provided under each Contract, in the form previously
delivered to the Agent.



     §1.2 Rules of Interpretation.



          (a) A reference to any document or agreement shall include such document or agreement as
amended, modified or supplemented from time to time in accordance with its terms and the terms of
this Agreement.




          (b) The singular includes the plural and the plural includes the singular.




          (c) A reference to any law includes any amendment or modification of such law.




          (d) A reference to any Person includes its permitted successors and permitted assigns.




          (e) Accounting terms not otherwise defined herein have the meanings assigned to them by GAAP
applied on a consistent basis by the accounting entity to which they refer.




          (f) The words “include”, “includes” and “including” are not limiting.




20









 








          (g) The words “approval” and “approved”, as the context requires, means an approval in writing
given to the party seeking approval after full and fair disclosure to the party giving approval of
all material facts necessary in order to determine whether approval should be granted.




          (h) All terms not specifically defined herein or by GAAP, which terms are defined in the
Uniform Commercial Code as in effect in the State of New York, have the meanings assigned to them
therein.




          (i) Reference to a particular “§”, refers to that section of this Agreement unless otherwise
indicated.




          (j) The words “herein”, “hereof”, “hereunder” and words of like import shall refer to this
Agreement as a whole and not to any particular section or subdivision of this Agreement.




          (k) In the event of any change in generally accepted accounting principles after the date
hereof or any other change in accounting procedures pursuant to §7.3 which would affect the
computation of any financial covenant, ratio or other requirement set forth in any Loan Document,
then upon the request of Borrower or Agent, the Borrower, the Guarantors, the Agent and the Lenders
shall negotiate promptly, diligently and in good faith in order to amend the provisions of the Loan
Documents such that such financial covenant, ratio or other requirement shall continue to provide
substantially the same financial tests or restrictions of the Borrower and the Guarantors as in
effect prior to such accounting change, as determined by the Required Lenders in their good faith
judgment. Until such time as such amendment shall have been executed and delivered by the
Borrower, Guarantors, the Agent and the Required Lenders, such financial covenants, ratio and other
requirements, and all financial statements and other documents required to be delivered under the
Loan Documents, shall be calculated and reported as if such change had not occurred.




§2. THE CREDIT FACILITY.




     §2.1 Loans.



          (a) Subject to the terms and conditions set forth in this Agreement, each of the Lenders
severally agrees to lend to the Borrower on the Closing Date such Lender’s Commitment Percentage of
the Total Commitment, and the Borrower irrevocably agrees to borrow from the Lenders the amount of
the Total Commitment. The Loans shall be fully disbursed on the Closing Date. Notwithstanding
anything to the contrary contained herein, the obligation of the Lenders to make the Loans is
subject to the satisfaction of the conditions set forth in §10. The funding of the Loans hereunder
shall constitute a representation and warranty by the Borrower that of the conditions required of
Borrower set forth in §10 have been satisfied on the Closing Date.




          (b) The Loans shall be evidenced by separate promissory notes of Borrower in substantially the
form of Exhibit A hereto (collectively, the “Notes”), dated of even date with this
Agreement (except as otherwise provided in §17.3) and completed with appropriate insertions. One
Note shall be payable to the order of each Lender in the principal amount equal




21









 







to such Lender’s Commitment, plus interest accrued thereon, as set forth below. The Borrower
irrevocably authorizes Agent to make or cause to be made, on or about the date hereof or the time
of receipt of any payment of principal thereof, an appropriate notation on Agent’s Record
reflecting the making of such Loan or (as the case may be) the receipt of such payment. The
outstanding amount of the Loans set forth on Agent’s Record shall be prima facie
evidence of the principal amount thereof owing and unpaid to each Lender, but the failure to
record, or any error in so recording, any such amount on Agent’s Record shall not limit or
otherwise affect the obligations of the Borrower hereunder or under any Note to make payments of
principal of or interest on any such Note when due.




     §2.2 Interest on Loans.



          (a) Each Base Rate Loan shall bear interest for the period commencing with the Drawdown Date
thereof and ending on the date on which such Base Rate Loan is repaid or converted to a LIBOR Rate
Loan at the rate per annum equal to the sum of the Base Rate plus the Applicable Margin.




          (b) Each LIBOR Rate Loan shall bear interest for the period commencing with the Drawdown Date
thereof and ending on the last day of each Interest Period with respect thereto at the rate per
annum equal to the sum of LIBOR determined for such Interest Period plus the Applicable Margin.




          (c) The Borrower promises to pay interest on each Loan in arrears on each Interest Payment
Date with respect thereto.




          (d) Base Rate Loans and LIBOR Rate Loans may be converted to Loans of the other Type as
provided in §4.1.




     §2.3 Funds for Loans.



          (a) Not later than 1:00 p.m. (Cleveland time) on the proposed Drawdown Date of the Loan, each
of the Lenders will make available to the Agent, at the Agent’s Head Office, in immediately
available funds, the amount of such Lender’s Commitment Percentage of the amount of the requested
Loans which may be disbursed pursuant to §2.1. Upon receipt from each Lender of such amount, and
upon receipt of the documents required by §10 and the satisfaction of the other conditions set
forth therein, to the extent applicable, the Agent will make available to the Borrower the
aggregate amount of such Loans made available to the Agent by the Lenders by crediting such amount
to the account of the Borrower maintained at the Agent’s Head Office. The failure or refusal of
any Lender to make available to the Agent at the aforesaid time and place on the Drawdown Date the
amount of its Commitment Percentage of the requested Loan shall not relieve any other Lender from
its several obligation hereunder to make available to the Agent the amount of such other Lender’s
Commitment Percentage of any requested Loan, including any additional Loans that may be requested
subject to the terms and conditions hereof to provide funds to replace those not advanced by the
Lender so failing or refusing. In the event of any such failure or refusal, the Lenders not so
failing or refusing shall be entitled to a priority secured position as against the Lender or
Lenders so failing or refusing to




22









 







make available to the Borrower the amount of its or their Commitment Percentage for such Loans
as provided in §11.5.




          (b) Unless the Agent shall have been notified by any Lender prior to the Drawdown Date that
such Lender will not make available to Agent such Lender’s Commitment Percentage of the proposed
Loan, Agent may in its discretion assume that such Lender has made such Loan available to Agent in
accordance with the provisions of this Agreement and the Agent may, if it chooses, in reliance upon
such assumption make such Loan available to the Borrower, and such Lender shall be liable to the
Agent for the amount of such advance. If such Lender does not pay such corresponding amount upon
the Agent’s demand therefor, the Agent will promptly notify the Borrower, and the Borrower shall
promptly pay such corresponding amount to the Agent. The Agent shall also be entitled to recover
from the Lender or the Borrower, as the case may be, interest on such corresponding amount in
respect of each day from the date such corresponding amount was made available by the Agent to the
Borrower to the date such corresponding amount is recovered by the Agent at a per annum rate equal
to (i) from the Borrower at the applicable rate for such Loan or (ii) from a Lender at the Federal
Funds Effective Rate plus one percent (1%).




     §2.4 Use of Proceeds. The Borrower will use the proceeds of the Loans solely to (a)
pay closing costs in connection with this Agreement; and (b) to finance a portion of the
Acquisition.



     §2.5 Extension of Maturity Date. The Borrower shall have the one-time right and
option, in its sole discretion, to extend the Maturity Date to March 10, 2012, upon satisfaction of
the following conditions precedent, which must be satisfied prior to the effectiveness of any
extension of the Maturity Date:



          (a) Extension Request. The Borrower shall deliver written notice of such request (the
“Extension Request”) to the Agent not later than the date which is forty-five (45) days prior to
the Maturity Date (as determined without regard to such extension). Any such Extension Request
shall be irrevocable and binding on the Borrower.




          (b) Payment of Extension Fee. The Borrower shall pay to the Agent for the pro
rata accounts of the Lenders in accordance with their respective Commitments an extension
fee in an amount equal to twenty-five (25) basis points on the Total Commitment, which fee shall,
when paid, be fully earned and non-refundable under any circumstances.




          (c) No Default. On the date the Extension Request is given and on the Maturity Date
(as determined without regard to such extension) there shall exist no Default or Event of Default.




          (d) Representations and Warranties. The representations and warranties made by the
Borrower and the Guarantors in the Loan Documents or otherwise made by or on behalf of the Borrower
and the Guarantors in connection therewith or after the date thereof shall have been true and
correct in all material respects when made and shall also be true and correct in all material
respects on the date the Extension Request is given and on the Maturity Date (as determined without
regard to such extension) other than for representations to the extent they




23









 







relate expressly to an earlier date, which representations shall be required to be true and
correct only as of such specified date, and except to the extent of any changes resulting from
transactions permitted by this Agreement that singly or in the aggregate have not had or could not
reasonably be expected to have a Material Adverse Effect.




          (e) Extension of Other Indebtedness. The maturity date of the Senior Revolving Loan
shall be extended to a date not earlier than the Maturity Date (as extended). To the extent not
already so extended, the maturity date of all Subordinated Debt shall be extended to a date not
earlier than one (1) year following the Maturity Date (as extended).




§3. REPAYMENT OF THE LOANS.




     §3.1 Stated Maturity. The Borrower promises to pay on the Maturity Date and there
shall become absolutely due and payable on the Maturity Date all of the Loans outstanding on such
date, together with any and all accrued and unpaid interest thereon.



     §3.2 Mandatory Prepayments. If at any time the obligation of the Senior Revolving
Lenders to make Senior Revolving Loans under the Senior Revolving Loan Agreement has been
terminated or their commitments under the Senior Revolving Loan Agreement has been reduced to zero,
the Borrower shall immediately make a prepayment of the entire amount of the outstanding Loans to
the Agent for the respective accounts of the Lenders, as applicable, for application to the Loans
as provided in §3.4, such prepayment shall be accompanied by the payment of any amounts due
pursuant to §4.8.



     §3.3 Optional Prepayments. The Borrower shall have the right, at its election, to
prepay the outstanding amount of the Loans, as a whole or in part, at any time without penalty or
premium; provided, that if any prepayment of the outstanding amount of any LIBOR Rate Loans
pursuant to this §3.3 is made on a date that is not the last day of the Interest Period relating
thereto, such prepayment shall be accompanied by the payment of any amounts due pursuant to §4.8.
The Borrower shall give the Agent, no later than 10:00 a.m. (Cleveland time) at least three (3)
days prior written notice of any prepayment pursuant to this §3.3, in each case specifying the
proposed date of prepayment of the Loans and the principal amount to be prepaid (provided that any
such notice may be revoked or modified upon one (1) day’s prior notice to the Agent).



     §3.4 Partial Prepayments. Each partial prepayment of the Loans under §3.3 shall be in
a minimum amount of $1,000,000.00 or an integral multiple of $100,000.00 in excess thereof, shall
be accompanied by the payment of accrued interest on the principal prepaid to the date of payment.
Each partial payment under §3.2 and §3.3 shall be applied in the absence of instruction by the
Borrower, to the principal of Base Rate Loans and then to the principal of LIBOR Rate Loans.



     §3.5 Effect of Prepayments. Amounts of the Loans prepaid or repaid may not be
reborrowed.



§4. CERTAIN GENERAL PROVISIONS.




     §4.1 Conversion Options.



24









 





          (a) The Borrower may elect from time to time to convert the Loan to a Loan of another Type and
it shall thereafter bear interest as a Base Rate Loan or a LIBOR Rate Loan, as applicable;
provided that (i) with respect to any such conversion of a LIBOR Rate Loan to a Base Rate
Loan, the Borrower shall give the Agent at least one (1) Business Day’s prior written notice of
such election, and such conversion shall only be made on the last day of the Interest Period with
respect to such LIBOR Rate Loan, unless Borrower elects to pay the Breakage Costs association with
such conversion; (ii) with respect to any such conversion of a Base Rate Loan to a LIBOR Rate Loan,
the Borrower shall give the Agent at least two (2) LIBOR Business Days’ prior written notice of
such election and the Interest Period requested for such Loan, the principal amount of the Loan so
converted shall be in a minimum aggregate amount of $1,000,000.00 or an integral multiple of
$200,000.00 in excess thereof and, after giving effect to the making of such Loan, there shall be
no more than four (4) LIBOR Rate Loans outstanding at any one time; and (iii) no Loan may be
converted into a LIBOR Rate Loan when any Default or Event of Default has occurred and is
continuing. All or any part of the outstanding Loans of any Type may be converted as provided
herein, provided that no partial conversion shall result in a Base Rate Loan in a principal
amount of less than $1,000,000.00 or an integral multiple of $100,000.00 or a LIBOR Rate Loan in a
principal amount of less than $1,000,000.00 or an integral multiple of $200,000.00. On the date on
which such conversion is being made, each Lender shall take such action as is necessary to transfer
its Commitment Percentage of the Loan to its Domestic Lending Office or its LIBOR Lending Office,
as the case may be. Each Conversion/Continuation Request relating to the conversion of a Base Rate
Loan to a LIBOR Rate Loan shall be irrevocable by the Borrower.




          (b) Any LIBOR Rate Loan may be continued as such Type upon the expiration of an Interest
Period with respect thereto by compliance by the Borrower with the terms of §4.1; provided
that no LIBOR Rate Loan may be continued as such when any Default or Event of Default has occurred
and is continuing, but shall be automatically converted to a Base Rate Loan on the last day of the
Interest Period relating thereto ending during the continuance of any Default or Event of Default.




          (c) In the event that the Borrower does not notify the Agent of its election hereunder with
respect to any LIBOR Rate Loan, such Loan shall be automatically converted at the end of the
applicable Interest Period to a Base Rate Loan.




     §4.2 Fees. The Borrower agrees to pay to KeyBank certain fees for services rendered
or to be rendered in connection with the Loans as provided pursuant to the separate fee letter
dated March 10, 2008 between Borrower and KeyBank (the “Agreement Regarding Fees”). All such fees
shall be fully earned when paid and nonrefundable under any circumstances.



     §4.3 Funds for Payments.



          (a) All payments of principal, interest, closing fees and any other amounts due hereunder or
under any of the other Loan Documents shall be made to the Agent, for the respective accounts of
the Lenders and the Agent, as the case may be, at the Agent’s Head Office, not later than 2:00 p.m.
(Cleveland time) on the day when due, in each case in lawful money of the United States in
immediately available funds. The Agent is hereby authorized to charge the accounts of the Borrower
with KeyBank, on the dates when the amount thereof shall




25









 







become due and payable, with the amounts of the principal of and interest on the Loans and all
fees, charges, expenses and other amounts owing to the Agent and/or the Lenders under the Loan
Documents. Subject to the foregoing, all payments made to Agent on behalf of the Lenders, and
actually received by Agent, shall be deemed received by the Lenders on the date actually received
by Agent.




          (b) All payments by the Borrower hereunder and under any of the other Loan Documents shall be
made without setoff or counterclaim and free and clear of and without deduction for any taxes
(other than income or franchise taxes imposed on any Lender), levies, imposts, duties, charges,
fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or
hereafter imposed or levied by any jurisdiction or any political subdivision thereof or taxing or
other authority therein unless the Borrower is compelled by law to make such deduction or
withholding. If any such obligation is imposed upon the Borrower with respect to any amount
payable by it hereunder or under any of the other Loan Documents, the Borrower will pay to the
Agent, for the account of the Lenders or (as the case may be) the Agent, on the date on which such
amount is due and payable hereunder or under such other Loan Document, such additional amount in
Dollars as shall be necessary to enable the Lenders or the Agent to receive the same net amount
which the Lenders or the Agent would have received on such due date had no such obligation been
imposed upon the Borrower. The Borrower will deliver promptly to the Agent certificates or other
valid vouchers for all taxes or other charges deducted from or paid with respect to payments made
by the Borrower hereunder or under any other Loan Document.




          (c) Each Lender organized under the laws of a jurisdiction outside the United States, if
requested in writing by the Borrower (but only so long as such Lender remains lawfully able to do
so), shall provide the Borrower with such duly executed form(s) or statement(s) which may, from
time to time, be prescribed by law and, which, pursuant to applicable provisions of (i) an income
tax treaty between the United States and the country of residence of such Lender, (ii) the Code, or
(iii) any applicable rules or regulations in effect under (i) or (ii) above, indicates the
withholding status of such Lender; provided that nothing herein (including without
limitation the failure or inability to provide such form or statement) shall relieve the Borrower
of its obligations under §4.3(b). In the event that the Borrower shall have delivered the
certificates or vouchers described above for any payments made by the Borrower and such Lender
receives a refund of any taxes paid by the Borrower pursuant to §4.3(b), such Lender will pay to
the Borrower the amount of such refund promptly upon receipt thereof; provided that if at
any time thereafter such Lender is required to return such refund, the Borrower shall promptly
repay to such Lender the amount of such refund.




          (d) The obligations of the Borrower to the Lenders under this Agreement shall be absolute,
unconditional and irrevocable, and shall be paid and performed strictly in accordance with the
terms of this Agreement, under all circumstances whatsoever, including, without limitation, the
following circumstances: (i) any lack of validity or enforceability of this Agreement or any of
the other Loan Documents; (ii) the existence of any claim, set-off, defense or any right which the
Borrower or any of its Subsidiaries or Affiliates may have at any time against any of the Lenders
(other than the defense of payment to the Lenders in accordance with the terms of this Agreement)
or any other person, whether in connection with this Agreement, any other Loan Document, or any
unrelated transaction; (iii) the occurrence of any Default or




26









 







Event of Default; and (iv) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing.




     §4.4 Computations. All computations of interest on the Loans and of other fees to the
extent applicable shall be based on a 360-day year and paid for the actual number of days elapsed.
Except as otherwise provided in the definition of the term “Interest Period” with respect to LIBOR
Rate Loans, whenever a payment hereunder or under any of the other Loan Documents becomes due on a
day that is not a Business Day, the due date for such payment shall be extended to the next
succeeding Business Day, and interest shall accrue during such extension. The Outstanding Loans as
reflected on the records of the Agent from time to time shall be considered prima facie evidence of
such amount absent manifest error.



     §4.5 Suspension of LIBOR Rate Loans. In the event that, prior to the commencement of
any Interest Period relating to any LIBOR Rate Loan, the Agent shall in its good faith discretion
determine that adequate and reasonable methods do not exist for ascertaining LIBOR for such
Interest Period, or the Agent shall reasonably determine that LIBOR will not accurately and fairly
reflect the cost of the Lenders making or maintaining LIBOR Rate Loans for such Interest Period,
the Agent shall forthwith give notice of such determination (which shall be conclusive and binding
on the Borrower and the Lenders absent manifest error) to the Borrower and the Lenders. In such
event each LIBOR Rate Loan will automatically, on the last day of the then current Interest Period
applicable thereto, become a Base Rate Loan, and the obligations of the Lenders to make LIBOR Rate
Loans shall be suspended until the Agent determines that the circumstances giving rise to such
suspension no longer exist, whereupon the Agent shall promptly notify the Borrower and the Lenders
thereof.



     §4.6 Illegality. Notwithstanding any other provisions herein, if any present or
future law, regulation, treaty or directive or the interpretation or application thereof shall make
it unlawful, or any central bank or other governmental authority having jurisdiction over a Lender
or its LIBOR Lending Office shall assert that it is unlawful, for any Lender to make or maintain
LIBOR Rate Loans, such Lender shall forthwith give notice of such circumstances to the Agent and
the Borrower and thereupon (a) the commitment of the Lenders to make LIBOR Rate Loans shall
forthwith be suspended and (b) the LIBOR Rate Loans then outstanding shall be converted
automatically to Base Rate Loans on the last day of each Interest Period applicable to such LIBOR
Rate Loans or within such earlier period as may be required by law. Notwithstanding the foregoing,
before giving such notice, the applicable Lender shall designate a different lending office if such
designation will void the need for giving such notice and will not, in the judgment of such Lender,
be otherwise materially disadvantageous to such Lender or increase any costs payable by Borrower
hereunder.



     §4.7 Additional Interest. If any LIBOR Rate Loan or any portion thereof is repaid or
is converted to a Base Rate Loan for any reason on a date which is prior to the last day of the
Interest Period applicable to such LIBOR Rate Loan, or if repayment of the Loans has been
accelerated as provided in §11.1, the Borrower will pay to the Agent upon demand for the account of
the applicable Lenders in accordance with their respective Commitment Percentages, in addition to
any amounts of interest otherwise payable hereunder, the Breakage Costs. Borrower understands,
agrees and acknowledges the following: (i) no Lender has any obligation to purchase, sell and/or
match funds in connection with the use of LIBOR as a basis for



27









 




calculating the rate of interest on a LIBOR Rate Loan; (ii) LIBOR is used merely as a
reference in determining such rate; and (iii) Borrower has accepted LIBOR as a reasonable and fair
basis for calculating such rate and any Breakage Costs. Borrower further agrees to pay the
Breakage Costs, if any, whether or not a Lender elects to purchase, sell and/or match funds.




     §4.8 Additional Costs, Etc. Notwithstanding anything herein to the contrary, but
subject to §4.13, if any present or future applicable law, which expression, as used herein,
includes statutes, rules and regulations thereunder and interpretations thereof by any competent
court or by any governmental or other regulatory body or official charged with the administration
or the interpretation thereof and requests, directives, instructions and notices at any time or
from time to time hereafter made upon or otherwise issued to any Lender or the Agent by any central
bank or other fiscal, monetary or other authority (whether or not having the force of law), shall:



          (a) subject any Lender or the Agent to any tax, levy, impost, duty, charge, fee, deduction or
withholding of any nature with respect to this Agreement, the other Loan Documents, such Lender’s
Commitment or the Loans (other than taxes based upon or measured by the gross receipts, income or
profits of such Lender or the Agent or its franchise tax), or




          (b) materially change the basis of taxation (except for changes in taxes on gross receipts,
income or profits or its franchise tax) of payments to any Lender of the principal of or the
interest on the Loan or any other amounts payable to any Lender under this Agreement or the other
Loan Documents, or




          (c) impose or increase or render applicable any special deposit, reserve, assessment,
liquidity, capital adequacy or other similar requirements (whether or not having the force of law
and which are not already reflected in any amounts payable by Borrower hereunder) against assets
held by, or deposits in or for the account of, or loans by, or commitments of an office of any
Lender, or




          (d) impose on any Lender or the Agent any other conditions or requirements with respect to
this Agreement, the other Loan Documents, the Loan, such Lender’s Commitment or any class of loans
or commitments of which any of the Loans or such Lender’s Commitment forms a part; and the result
of any of the foregoing is:




               (i) to increase the cost to any Lender of making, funding, issuing, renewing, extending or
maintaining the Loan or such Lender’s Commitment, or




               (ii) to reduce the amount of principal, interest or other amount payable to any Lender or the
Agent hereunder on account of such Lender’s Commitment or the Loan, or




               (iii) to require any Lender or the Agent to make any payment or to forego any interest or
other sum payable hereunder, the amount of which payment or foregone interest or other sum is
calculated by reference to the gross amount of any sum receivable or deemed received by such Lender
or the Agent from the Borrower hereunder,



then, and in each such case, the Borrower will, within fifteen (15) days of demand made by such
Lender or (as the case may be) the Agent at any time and from time to time and as often as the
occasion therefor may arise, pay to such Lender or the Agent such additional amounts as such




28









 







Lender or the Agent shall determine in good faith to be sufficient to compensate such Lender or the
Agent for such additional cost, reduction, payment or foregone interest or other sum. Each Lender
and the Agent in determining such amounts may use any reasonable averaging and attribution methods
generally applied by such Lender or the Agent.




     §4.9 Capital Adequacy. If after the date hereof any Lender determines in good faith
that (a) the adoption of or change in any law, rule, regulation or guideline regarding capital
requirements for banks or bank holding companies or any change in the interpretation or application
thereof by any governmental authority charged with the administration thereof, or (b) compliance by
such Lender or its parent bank holding company with any guideline, request or directive of any such
entity regarding capital adequacy (whether or not having the force of law), has the effect of
reducing the return on such Lender’s or such holding company’s capital as a consequence of such
Lender’s commitment to make the Loan hereunder to a level below that which such Lender or holding
company could have achieved but for such adoption, change or compliance (taking into consideration
such Lender’s or such holding company’s then existing policies with respect to capital adequacy and
assuming the full utilization of such entity’s capital) by any amount deemed by such Lender to be
material, then such Lender may notify the Borrower thereof. The Borrower agrees to pay to such
Lender the amount of such reduction in the return on capital as and when such reduction is
determined by Lender in its good faith discretion, upon presentation by such Lender of a statement
of the amount setting forth the Lender’s calculation thereof. In determining such amount, such
Lender may use any reasonable averaging and attribution methods generally applied by such Lender.



     §4.10 Breakage Costs. Borrower shall pay all Breakage Costs required to be paid by it
pursuant to this Agreement and incurred from time to time by any Lender upon demand within fifteen
(15) days from receipt of written notice from Agent, or such earlier date as may be required by
this Agreement.



     §4.11 Default Interest. Following the occurrence and during the continuance of any
Event of Default, and regardless of whether or not the Agent or the Lenders shall have accelerated
the maturity of the Loan, the Loan shall bear interest payable on demand at a rate per annum equal
to two percent (2.0%) above the Base Rate (the “Default Rate”), until such amount shall be paid in
full (after as well as before judgment), or if any of such amount shall exceed the maximum rate
permitted by law, then at the maximum rate permitted by law.



     §4.12 Certificate. A certificate setting forth any amounts payable pursuant to §4.7,
§4.8, §4.9, §4.10 or §4.11 and a reasonably detailed explanation of such amounts which are due,
submitted by any Lender or the Agent to the Borrower, shall be conclusive in the absence of
manifest error.



     §4.13 Limitation on Interest. Notwithstanding anything in this Agreement or the other
Loan Documents to the contrary, all agreements between or among the Borrower, the Guarantors, the
Lenders and the Agent, whether now existing or hereafter arising and whether written or oral, are
hereby limited so that in no contingency, whether by reason of acceleration of the maturity of any
of the Obligations or otherwise, shall the interest contracted for, charged or received by the
Lenders exceed the maximum amount permissible under applicable law. If, from any circumstance
whatsoever, interest would otherwise be payable to the Lenders in excess of



29









 




the maximum lawful amount, the interest payable to the Lenders shall be reduced to the maximum
amount permitted under applicable law; and if from any circumstance the Lenders shall ever receive
anything of value deemed interest by applicable law in excess of the maximum lawful amount, an
amount equal to any excessive interest shall be applied to the reduction of the principal balance
of the Obligations and to the payment of interest or, if such excessive interest exceeds the unpaid
balance of principal of the Obligations, such excess shall be refunded to the Borrower. All
interest paid or agreed to be paid to the Lenders shall, to the extent permitted by applicable law,
be amortized, prorated, allocated and spread throughout the full period until payment in full of
the principal of the Obligations (including the period of any renewal or extension thereof) so that
the interest thereon for such full period shall not exceed the maximum amount permitted by
applicable law. This Section shall control all agreements between or among the Borrower, the
Guarantors, the Lenders and the Agent.




     §4.14 Certain Provisions Relating to Increased Costs. If a Lender gives notice of the
existence of the circumstances set forth in §4.6 or any Lender requests compensation for any losses
or costs to be reimbursed pursuant to any one or more of the provisions of §4.8 or §4.9, then, upon
request of Borrower, such Lender, as applicable, shall use reasonable efforts in a manner
consistent with such institution’s practice in connection with loans like the Loan of such Lender
to eliminate, mitigate or reduce amounts that would otherwise be payable by Borrower under the
foregoing provisions, provided that such action would not be otherwise prejudicial to such
Lender, including, without limitation, by designating another of such Lender’s offices, branches or
affiliates; the Borrower agreeing to pay all reasonably incurred costs and expenses incurred by
such Lender in connection with any such action. Notwithstanding anything to the contrary contained
herein, if no Default or Event of Default shall have occurred and be continuing, and if any Lender
has given notice of the existence of the circumstances set forth in §4.6 or has requested payment
or compensation for any losses or costs to be reimbursed pursuant to any one or more of the
provisions of §4.8 or §4.9 (each, an “Affected Lender”), then, within thirty (30) days after such
notice or request for payment or compensation, Borrower shall have the one-time right as to such
Affected Lender to be exercised by delivery of written notice delivered to the Agent and the
Affected Lender within thirty (30) days of receipt of such notice to elect to cause the Affected
Lender to transfer its Commitment. The Agent shall promptly notify the remaining Lenders that each
of such Lenders shall have the right, but not the obligation, to acquire a portion of the
Commitment, pro rata based upon their relevant Commitment Percentages, of the Affected Lender (or
if any of such Lenders does not elect to purchase its pro rata share, then to such remaining
Lenders in such proportion as approved by the Agent). In the event that the Lenders do not elect
to acquire all of the Affected Lender’s Commitment, then the Agent shall endeavor to obtain a new
Lender to acquire such remaining Commitment. Upon any such purchase of the Commitment of the
Affected Lender, the Affected Lender’s interest in the Obligations and its rights hereunder and
under the Loan Documents shall terminate at the date of purchase, and the Affected Lender shall
promptly execute all documents reasonably requested to surrender and transfer such interest. The
purchase price for the Affected Lender’s Commitment shall equal any and all amounts outstanding and
owed by Borrower to the Affected Lender, including principal and all accrued and unpaid interest or
fees.



30









 





§5. COLLATERAL SECURITY.




     §5.1 Collateral. The Obligations shall be secured by (i) a perfected first priority
lien to be held by the Agent for the benefit of the Lenders in the Equity Interests pledged
pursuant to the Pledge Agreement and (ii) a perfected first priority lien to be held by the Agent
for the benefit of the Lenders in the other Collateral pledged pursuant to the Security Agreement.
The Obligations shall be guaranteed by the Guarantors pursuant to the Guaranty.



     §5.2 Additional Guarantors. In the event any direct or indirect Subsidiary of the
Borrower shall satisfy the definition of “Material Subsidiary”, whether formed or acquired after
the date hereof, the Borrower shall cause each such Subsidiary to promptly, but in any event within
fifteen (15) Business Days of satisfying such “Material Subsidiary” definition (as such date may be
extended by Agent in its discretion), execute and deliver to Agent a Joinder Agreement, and such
Subsidiary shall become a Guarantor hereunder and thereunder. Each such Subsidiary shall be
specifically authorized, in accordance with its respective organizational documents, to be a
Guarantor hereunder and thereunder and to execute the Contribution Agreement and such Security
Documents as Agent may require. The Borrower and Parent shall further cause all representations,
covenants and agreements in the Loan Documents with respect to Guarantors to be true and correct
with respect to each such Subsidiary. In connection with the delivery of such Joinder Agreement,
the Borrower shall deliver to the Agent such organizational agreements, resolutions, consents,
opinions and other documents and instruments as the Agent may reasonably require.



     §5.3 Release of Collateral and Guarantors. Upon the refinancing or repayment of the
Obligations in full, then the Agent shall be entitled to release the Collateral from the lien and
security interest of the Security Documents and to release the Guarantors, provided that Agent has
not received a notice from the “Representative” (as defined in §13.11) or the holder of the Hedge
Obligations that any Hedge Obligation is then due and payable to the holder thereof.



§6. REPRESENTATIONS AND WARRANTIES.




     The Borrower represents and warrants to the Agent and the Lenders as follows.



     §6.1 Corporate Authority, Etc.



          (a) Incorporation; Good Standing. Parent is a Maryland corporation duly organized
pursuant to articles of incorporation filed with the Maryland Secretary of State, and is validly
existing and in good standing under the laws of Maryland. Parent conducts its business in a manner
which enables it to qualify as a real estate investment trust under, and to be entitled to the
benefits of, §856 of the Code, and has elected to be treated as and is entitled to the benefits of
a real estate investment trust thereunder. The Borrower is a Wisconsin corporation duly organized
pursuant to its articles of incorporation filed with the Wisconsin Secretary of State, and is
validly existing and in good standing under the laws of Wisconsin. The Borrower (i) has all
requisite power to own its property and conduct its business as now conducted and as presently
contemplated, and (ii) is in good standing and is duly authorized to do business in the
jurisdiction of its organization and in each other jurisdiction where a failure to be so qualified
in




31









 







such other jurisdiction has had or could reasonably be expected to have a Material Adverse
Effect.




          (b) Subsidiaries. Each of the Subsidiaries of the Borrower and Guarantors (other than
the Borrower) (i) is a corporation, limited partnership, general partnership, limited liability
company or trust duly organized under the laws of its State of organization and is validly existing
and in good standing under the laws thereof, (ii) has all requisite power to own its property and
conduct its business as now conducted and as presently contemplated and (iii) is in good standing
and is duly authorized to do business in each jurisdiction necessary to carry out its business and
operations, except where a failure to comply with §6.1(b)(i), (ii) and (iii) individually or in the
aggregate has not had and could not reasonably be expected to have a Material Adverse Effect.




          (c) Authorization. The execution, delivery and performance of this Agreement and the
other Loan Documents to which any of the Borrower or any Guarantor is a party and the transactions
contemplated hereby and thereby (i) are within the authority of such Person, (ii) have been duly
authorized by all necessary proceedings on the part of such Person, (iii) do not and will not
conflict with or result in any breach or contravention of any provision of law, statute, rule or
regulation to which such Person is subject or any judgment, order, writ, injunction, license or
permit applicable to such Person, (iv) do not and will not conflict with or constitute a default
(whether with the passage of time or the giving of notice, or both) under any provision of the
partnership agreement, articles of incorporation or other charter documents or bylaws of, or any
agreement or other instrument binding upon, such Person or any of its properties, (v) do not and
will not result in or require the imposition of any lien or other encumbrance on any of the
properties, assets or rights of such Person, and (vi) do not require the approval or consent of any
Person other than those already obtained and delivered to Agent.




          (d) Enforceability. The execution and delivery of this Agreement and the other Loan
Documents to which any of the Borrower or any Guarantor is a party are valid and legally binding
obligations of such Person enforceable in accordance with the respective terms and provisions
hereof and thereof, except as enforceability is limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting generally the enforcement of creditors’ rights
and general principles of equity.




     §6.2 Governmental Approvals. The execution, delivery and performance of this
Agreement and the other Loan Documents to which the Borrower or any Guarantor is a party and the
transactions contemplated hereby and thereby do not require the approval or consent of, or filing
or registration with, or the giving of any notice to, any court, department, board, governmental
agency or authority other than those already obtained and the filing of the Security Documents in
the appropriate records office with respect thereto.



     §6.3 Title to Properties; Etc. Except as indicated on Part I of Schedule 6.3
hereto, the Borrower, the Guarantors and their respective Subsidiaries own or lease all of the
assets reflected in the consolidated balance sheet of Parent as at the Balance Sheet Date or
acquired or leased since that date (except property and assets sold or otherwise disposed of in the
ordinary course of business since that date) or other adjustments that are not material in amount,
subject to no rights of others, including any mortgages, leases pursuant to which Parent or any of
its Subsidiaries or



32









 




any of their Affiliates is the lessee, conditional sales agreements, title retention
agreements, liens or other encumbrances except Permitted Liens and as to Subsidiaries of Borrower,
except for such defects as individually or in the aggregate have not had and could not reasonably
be expected to have a Material Adverse Effect. Neither the Borrower nor any of its Subsidiaries,
owns any assets or properties, individually or in the aggregate, with a value (determined at the
greater of fair market and book value) in excess of $5,000,000.00, other than materials to be
incorporated into a Project.




     §6.4 Financial Statements. The Borrower has furnished to Agent: (a) the unaudited
consolidated balance sheet of (i) Parent and its Subsidiaries and (ii) the Borrower and its
Subsidiaries, each as of the Balance Sheet Date and the related consolidated statement of income
and cash flow for the calendar year then ended, (b) as of the Closing Date, an unaudited statement
of Adjusted Consolidated EBITDA of (i) Parent and its Subsidiaries and (ii) the Borrower and its
Subsidiaries, each for the period ending on the Balance Sheet Date reasonably satisfactory in form
to the Agent, and (c) certain other financial information relating to the Borrower, the Guarantors
and the Collateral. Such balance sheets and statements have been prepared in accordance with GAAP
and fairly present the consolidated financial condition of Parent and its Subsidiaries and the
Borrower and its Subsidiaries, as applicable, as of such dates and the consolidated results of the
operations of Parent and its Subsidiaries and the Borrower and its Subsidiaries, as applicable, for
such periods.



     §6.5 No Material Changes. Since the Balance Sheet Date or the date of the most recent
financial statements delivered pursuant to §7.4, as applicable, there has occurred no materially
adverse change in the financial condition or business of the Borrower, Guarantors and their
respective Subsidiaries taken as a whole as shown on or reflected in the consolidated balance sheet
of the Parent or the Borrower, as applicable, as of the Balance Sheet Date, or its consolidated
statement of income or cash flows for the calendar year then ended, other than changes that have
not and could not reasonably be expected to have a Material Adverse Effect.



     §6.6 Franchises, Patents, Copyrights, Etc. The Borrower, the Guarantors and their
respective Subsidiaries possess all franchises, patents, copyrights, trademarks, trade names,
service marks, licenses and permits, and rights in respect of the foregoing, adequate for the
conduct of their business substantially as now conducted without known conflict with any rights of
others except where such failure individually or in the aggregate has not had and could not
reasonably be expected to have a Material Adverse Effect.



     §6.7 Litigation. Except as stated on Schedule 6.7, there are no actions,
suits, proceedings or investigations of any kind pending or to the knowledge of the Borrower
threatened against (a) the Borrower, any Guarantor or any of their respective Subsidiaries before
any court, tribunal, arbitrator, mediator or administrative agency or board which question the
validity of this Agreement or any of the other Loan Documents, any action taken or to be taken
pursuant hereto or thereto or any lien, security title or security interest created or intended to
be created pursuant hereto or thereto, or which if adversely determined could reasonably be
expected to have a Material Adverse Effect or (b) any Person arising out of or relating to the
Acquisition. Except as set forth on Schedule 6.7, there are no judgments, final orders or
awards outstanding against or affecting the Borrower, any Guarantor, any of their respective
Subsidiaries or any Collateral.



33









 





     §6.8 No Material Adverse Contracts, Etc. None of the Borrower, any Guarantor or any
of their respective Subsidiaries is subject to any charter, corporate or other legal restriction,
or any judgment, decree, order, rule or regulation that has or is expected in the future to have a
Material Adverse Effect. None of the Borrower, any Guarantor or any of their respective
Subsidiaries is a party to any contract or agreement that has or could reasonably be expected to
have a Material Adverse Effect.



     §6.9 Compliance with Other Instruments, Laws, Etc. None of the Borrower, any
Guarantor or any of their respective Subsidiaries is in violation of any provision of its charter
or other organizational documents, bylaws, or any agreement or instrument to which it is subject or
by which it or any of its properties is bound or any decree, order, judgment, statute, license,
rule or regulation, in any of the foregoing cases in a manner that has had or could reasonably be
expected to have a Material Adverse Effect.



     §6.10 Tax Status. Each of the Borrower, the Guarantors and their respective
Subsidiaries (a) has made or filed all federal and state income and all other tax returns, reports
and declarations required by any jurisdiction to which it is subject or has obtained an extension
for filing, (b) has paid prior to delinquency all taxes and other governmental assessments and
charges shown or determined to be due on such returns, reports and declarations, except those being
contested in good faith and by appropriate proceedings and (c) has set aside on its books
provisions reasonably adequate for the payment of all taxes for periods subsequent to the periods
to which such returns, reports or declarations apply. There are no unpaid taxes in any material
amount claimed to be due by the taxing authority of any jurisdiction, and the officers or partners
of such Person know of no basis for any such claim. There are no audits pending or to the
knowledge of Borrower threatened with respect to any tax returns filed by Borrower, any Guarantor
or their respective Subsidiaries. The taxpayer identification number for Parent is 20-3126457, and
for the Borrower is 27-0075162.



     §6.11 No Event of Default. No Default or Event of Default has occurred and is
continuing.



     §6.12 Investment Company Act. None of the Borrower, any Guarantor or any of their
respective Subsidiaries is an “investment company”, or an “affiliated company” or a “principal
underwriter” of an “investment company”, as such terms are defined in the Investment Company Act of
1940.



     §6.13 Absence of Liens. There are no Liens on any property of the Borrower, any
Guarantor or any of their respective Subsidiaries or rights thereunder except as permitted by §8.2.



     §6.14 Labor Matters. Except as, in the aggregate, have not had and could not
reasonably be expected to have a Material Adverse Effect: (a) there are no strikes or other labor
disputes against the Borrower or any of its Subsidiaries pending or, to the knowledge of the
Borrower, threatened; (b) hours worked by and payment made to employees of the Borrower or any of
its Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable
requirement of law dealing with such matters; and (c) all payments due from the



34









 




Borrower or any of its Subsidiaries on account of employee health and welfare insurance have
been paid or accrued as a liability on the books of the Borrower or such Subsidiary.




     §6.15 Setoff, Etc. The Collateral and the rights of the Agent and the Lenders with
respect to the Collateral are not subject to any setoff, claims, withholdings or other defenses by
the Borrower, any Guarantor or any of their respective Subsidiaries or Affiliates or, to the best
knowledge of Borrower, any other Person other than Permitted Liens described in §8.2(i) and (vi).



     §6.16 Certain Transactions. Except as disclosed on Schedule 6.16 hereto, none
of the partners, officers, trustees, managers, members, directors, or employees of the Borrower,
any Guarantor or any of their respective Subsidiaries is, nor shall any such Person become, a party
to any transaction with the Borrower, any Guarantor or any of their respective Subsidiaries or
Affiliates (other than for services as partners, managers, members, employees, officers and
directors), including any agreement or other arrangement providing for the furnishing of services
to or by, providing for rental of real or personal property to or from, or otherwise requiring
payments to or from any partner, officer, trustee, director or such employee or, to the knowledge
of the Borrower, any corporation, partnership, trust or other entity in which any partner, officer,
trustee, director, or any such employee has a substantial interest or is an officer, director,
trustee or partner, which are on terms less favorable to the Borrower, any Guarantor or any of
their respective Subsidiaries than those that would be obtained in a comparable arms-length
transaction.



     §6.17 Employee Benefit Plans. The Borrower, each Guarantor and each ERISA Affiliate
has fulfilled its obligation, if any, under the minimum funding standards of ERISA and the Code
with respect to each Employee Benefit Plan, Multiemployer Plan or Guaranteed Pension Plan and is in
compliance in all material respects with the presently applicable provisions of ERISA and the Code
with respect to each Employee Benefit Plan, Multiemployer Plan or Guaranteed Pension Plan. Neither
the Borrower, any Guarantor nor any ERISA Affiliate has (a) sought a waiver of the minimum funding
standard under §412 of the Code in respect of any Employee Benefit Plan, Multiemployer Plan or
Guaranteed Pension Plan, (b) failed to make any contribution or payment to any Employee Benefit
Plan, Multiemployer Plan or Guaranteed Pension Plan, or made any amendment to any Employee Benefit
Plan, Multiemployer Plan or Guaranteed Pension Plan, which has resulted or could reasonably be
expected to result in the imposition of a Lien or the posting of a bond or other security under
ERISA or the Code, or (c) incurred any material liability under Title IV of ERISA other than a
liability to the PBGC for premiums under §4007 of ERISA.



     §6.18 Disclosure. All of the representations and warranties made by or on behalf of
the Borrower, the Guarantors and their respective Subsidiaries in this Agreement and the other Loan
Documents or any document or instrument delivered to the Agent or the Lenders pursuant to or in
connection with any of such Loan Documents are true and correct in all material respects, and
neither the Borrower nor any Guarantor has failed to disclose such information as is necessary to
make such representations and warranties not misleading in any material respect. There is no
material fact or circumstance that has not been disclosed to the Agent and the Lenders, and the
written information, reports and other papers and data with respect to the Borrower, any
Subsidiary, any Guarantor or the Collateral furnished to the Agent or the Lenders in connection



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with this Agreement or the obtaining of the Commitments of the Lenders hereunder was, at the
time so furnished, complete and correct in all material respects, or has been subsequently
supplemented by other written information, reports or other papers or data, to the extent necessary
to give in all material respects a true and accurate knowledge of the subject matter in all
material respects; provided that such representation shall not apply to (a) the accuracy of
any appraisal, title commitment, survey, or engineering and environmental reports prepared by third
parties or legal conclusions or analysis provided by the Borrower’s and/or any Guarantor’s counsel
(although the Borrower and the Guarantors have no reason to believe that the Agent and the Lenders
may not rely on the accuracy thereof) or (b) budgets, projections and other forward-looking
speculative information prepared in good faith by the Borrower (except to the extent the related
assumptions were when made manifestly unreasonable).




     §6.19 Trade Name; Place of Business. Neither the Borrower nor any Guarantor uses any
trade name and conducts business under any name other than its actual name set forth in the Loan
Documents. The principal place of business of the Borrower and each Guarantor is 4401 Barclay
Downs Drive, Suite 300, Charlotte, North Carolina 28209.



     §6.20 Regulations T, U and X. No portion of any Loan is to be used for the purpose of
purchasing or carrying any “margin security” or “margin stock” as such terms are used in
Regulations T, U and X of the Board of Governors of the Federal Reserve System, 12 C.F.R. Parts
220, 221 and 224. Neither the Borrower nor any Guarantor is engaged, nor will it engage,
principally or as one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying any “margin security” or “margin stock” as such terms are used in
Regulations T, U and X of the Board of Governors of the Federal Reserve System, 12 C.F.R. Parts
220, 221 and 224.



     §6.21 Environmental Matters. The Borrower shall, and shall cause each Guarantor and
each Subsidiary of the Borrower and each Guarantor to, comply or cause to be complied with, all
Environmental Laws in all material respects except where the failure to do so could not reasonably
be expected to result in a Material Adverse Effect. If the Borrower, any Guarantor or any of their
respective Subsidiaries shall (a) receive notice that any material violation of any Environmental
Law may have been committed or is about to be committed by such Person, (b) receive notice that any
administrative or judicial complaint or order has been filed or is about to be filed against the
Borrower, or any Guarantor or any of their respective Subsidiaries alleging material violations of
any Environmental Law or requiring the Borrower, any Guarantor or any of their respective
Subsidiaries to take any action in connection with the release of Hazardous Substances, or (c)
receive any notice from a governmental authority or private party alleging that the Borrower, any
Guarantor or any of their respective Subsidiaries may be liable or responsible for costs associated
with a response to or cleanup of a release of Hazardous Substances or any damages caused thereby
individually or in the aggregate in excess of $5,000,000.00, the Borrower shall provide the Agent
and each Lender with a copy of such notice within thirty (30) days after the receipt thereof by
such Person. The Borrower shall, and shall cause the Guarantors and each Subsidiary of the
Borrower or any Guarantor to, take or cause to be taken promptly all actions necessary to prevent
the imposition of any Liens on any of their respective material properties arising out of or
related to any Environmental Laws.



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     §6.22 Subsidiaries; Organizational Structure. Schedule 6.22 sets forth, as of
the date hereof, all of the Subsidiaries of the Parent and its Subsidiaries, the form and
jurisdiction of organization of each of the Subsidiaries, and the Parent’s direct and indirect
ownership interests therein. Schedule 6.22 sets forth, as of the date hereof, all of the
Unconsolidated Affiliates of the Borrower and its Subsidiaries, the form and jurisdiction of
organization of each of the Unconsolidated Affiliates, and the Borrower’s or its Subsidiary’s
ownership interest therein.



     §6.23 Contracts, Subcontracts, Etc. Schedule 6.23 sets forth, as of the date
hereof, each design/build, construction or development Contract (including any material change
orders thereunder) to which the Borrower or any of its Subsidiaries is a party, and each Indemnity
Agreement and Payment and Performance Bond in effect as of the date hereof, and such schedule
identifies each such agreement as a Contract, a Subcontract, an Indemnity Agreement or a Payment or
Performance Bond, as applicable. There have been no claims made under any Indemnity Agreement in
excess of $2,000,000.00, individually or in the aggregate, and none of the Borrower or any of its
Subsidiaries is in breach or violation of any Contract, Subcontract, Indemnity Agreement or Payment
or Performance Bond which breach or violation could reasonably be expect to have a Material Adverse
Effect. Promptly upon the request of the Agent, the Borrower shall provide to Agent an updated
Schedule 6.23 reflecting any changes to the contents of such Schedule since the Closing
Date.



     §6.24 Property. In addition to the requirements of any of the other Loan Documents,
the Borrower shall, and shall cause each Guarantor and each Subsidiary of the Borrower and each
Guarantor to, (a) protect and preserve all of its properties or cause to be protected and
preserved, and maintain or cause to be maintained in good repair, working order and condition all
tangible properties, ordinary wear and tear excepted, and (b) make or cause to be made all needed
and appropriate repairs, renewals, replacements and additions to such properties, so that the
business carried on in connection therewith may be properly and advantageously conducted at all
times, except, in the case of each of the foregoing, where the failure to do so could not
individually or in the aggregate reasonably be expected to result in a Material Adverse Effect.



     §6.25 Brokers. Neither the Borrower nor any Guarantor has engaged or otherwise dealt
with any broker, finder or similar entity in connection with this Agreement or the Loans
contemplated hereunder. Borrower has paid, or has caused to have been paid, all broker’s fees, if
any, in connection with the Acquisition.



     §6.26 Other Debt. As of the date of this Agreement, neither the Borrower, any
Guarantor nor any of their respective Subsidiaries is in default of the payment of any Indebtedness
or the performance of any related agreement, mortgage, deed of trust, security agreement, financing
agreement, indenture or lease to which any of them is a party. Neither the Borrower nor any
Guarantor is a party to or bound by any agreement, instrument or indenture that may require the
subordination in right or time or payment of any of the Obligations to any other indebtedness or
obligation of the Borrower or any Guarantor. Schedule 6.26 hereto sets forth all
mortgages, deeds of trust, financing agreements or other material agreements binding upon the
Borrower and each Guarantor or their respective properties and entered into by the Borrower and/or
any Guarantor as of the date of this Agreement with respect to any Indebtedness of the Borrower or
any Guarantor in an amount greater than $1,000,000.00, and the Borrower has provided the Agent with
true, correct and complete copies thereof.



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     §6.27 Solvency. As of the Closing Date and after giving effect to the transactions
contemplated by this Agreement and the other Loan Documents, including all Loans made or to be made
hereunder, and the consummation of the Acquisition, neither the Borrower nor any Guarantor is
insolvent on a balance sheet basis such that the sum of such Person’s assets exceeds the sum of
such Person’s liabilities, the Borrower and each Guarantor is able to pay its debts as they become
due, and the Borrower and each Guarantor has sufficient capital to carry on its business.



     §6.28 No Bankruptcy Filing. Neither the Borrower nor any Guarantor is contemplating
either the filing of a petition by it under any state or federal bankruptcy or insolvency laws or
the liquidation of its assets or property, and the Borrower has no knowledge of any Person
contemplating the filing of any such petition against it or any Guarantor.



     §6.29 No Fraudulent Intent. Neither the execution and delivery of this Agreement or
any of the other Loan Documents nor the performance of any actions required hereunder or thereunder
is being undertaken by the Borrower or any Guarantor with or as a result of any actual intent by
any of such Persons to hinder, delay or defraud any entity to which any of such Persons is now or
will hereafter become indebted.



     §6.30 Transaction in Best Interests of Borrower; Consideration. The transaction
evidenced by this Agreement and the other Loan Documents is in the best interests of the Borrower
and each Guarantor. The direct and indirect benefits to inure to the Borrower and the Subsidiary
Guarantors pursuant to this Agreement and the other Loan Documents, giving effect to the
Contribution Agreement, constitute “reasonably equivalent value” (as such term is used in §548 of
the Bankruptcy Code) and “valuable consideration,” “fair value,” and “fair consideration” (as such
terms are used in any applicable state fraudulent conveyance law), in exchange for the benefits to
be provided by the Borrower and the Subsidiary Guarantors pursuant to this Agreement and the other
Loan Documents, and but for the willingness of the Borrower’s Subsidiaries to guaranty the Loan,
the Borrower would be unable to obtain the financing contemplated hereunder which financing will
enable the Borrower and its Subsidiaries to have available financing to conduct and expand their
business. Borrower further acknowledges and agrees that Borrower and its Subsidiaries constitute a
single integrated and common enterprise and that each receives a benefit from the availability of
credit under this Agreement.



     §6.31 Contribution Agreement. The Borrower and the Guarantors have executed and
delivered the Contribution Agreement, and the Contribution Agreement constitutes the valid and
legally binding obligations of such parties enforceable against them in accordance with the terms
and provisions thereof, except as enforceability is limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting generally the enforcement of
creditors’ rights and except to the extent that availability of the remedy of specific performance
or injunctive relief is subject to the discretion of the court before which any proceeding therefor
may be brought.



     §6.32 OFAC. None of the Borrower or any Guarantor is (or will be) a person with whom
any Lender is restricted from doing business under OFAC (including, those Persons named on OFAC’s
Specially Designated and Blocked Persons list) or under any statute, executive order (including the
September 24, 2001 Executive Order Blocking Property and



38









 




Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism),
or other governmental action and is not and shall not engage in any dealings or transactions or
otherwise be associated with such persons. In addition, Borrower hereby agrees to provide to the
Lenders any additional information that a Lender reasonably deems necessary from time to time in
order to ensure compliance with all applicable laws concerning money laundering and similar
activities.




     §6.33 No Prohibited Transaction. The execution, delivery and performance of this
Agreement and the other Loan Documents, and the borrowing and repayment of amounts hereunder, do
not and will not constitute “prohibited transactions” under ERISA or the Internal Revenue Code.



§7. AFFIRMATIVE COVENANTS.




     The Borrower covenants and agrees that, so long as any Loan or Note is outstanding or any
Lender has any obligation to make any Loans hereunder:



     §7.1 Punctual Payment. The Borrower will duly and punctually pay or cause to be paid
the principal and interest on the Loans and all interest and fees provided for in this Agreement,
all in accordance with the terms of this Agreement and the Notes, as well as all other sums owing
pursuant to the Loan Documents.



     §7.2 Maintenance of Office. The Borrower and each Guarantor will maintain its
respective chief executive office at 4401 Barclay Downs Drive, Suite 300, Charlotte, North Carolina
28209, or at such other place in the United States of America as the Borrower or any Guarantor
shall designate upon fifteen (15) days prior written notice to the Agent and the Lenders, where
notices, presentations and demands to or upon the Borrower or such Guarantor in respect of the Loan
Documents may be given or made.



     §7.3 Records and Accounts. The Borrower and each Guarantor will keep, and cause each
of their respective Subsidiaries to keep true and accurate records and books of account in which
full, true and correct entries will be made in accordance with GAAP, and the Borrower will maintain
adequate accounts and reserves for all taxes (including income taxes). Neither the Borrower, any
Guarantor nor any of their respective Subsidiaries shall, without notifying the Agent in advance,
(x) make any material change to the accounting policies/principles used by such Person in preparing
the financial statements and other information described in §6.4 or §7.4, or (y) change its fiscal
year. Agent and the Lenders acknowledge that Parent’s and Borrower’s fiscal year is a calendar
year.



     §7.4 Financial Statements, Certificates and Information. Borrower will deliver or
cause to be delivered to the Agent with sufficient copies for each of the Lenders:



          (a) within five (5) days of the filing of Parent’s Form 10-K with the SEC, but in any event
within ninety (90) days after the end of each calendar year, (i) a consolidated balance sheet of
the Parent and its Subsidiaries as of the end of such year and the related consolidated statements
of income, shareholders’ equity and cash flows for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, all certified by Deloitte & Touche LLP
or other independent public accountants of nationally recognized




39









 







standing, with such certification to be free of exceptions and qualifications not acceptable
to the Required Lenders and (ii) a consolidated balance sheet of the Borrower and its Subsidiaries
as of the end of such year and the related consolidated statements of income, shareholders’ equity
and cash flows for such year, setting forth in each case in comparative form the figures for the
previous fiscal year, all certified by Deloitte & Touche LLP or other independent public
accountants of nationally recognized standing, with such certification to be free of exceptions and
qualifications not acceptable to the Required Lenders;




          (b) within five (5) days of the filing of Parent’s Form 10-Q with the SEC, if applicable, but
in any event within forty-five (45) days after the end of each of the four calendar quarters of
each year, (i) a consolidated balance sheet of the Parent and its Subsidiaries as of the end of
such quarter and the related statement of income and statement of cash flows for such quarter and
for the portion of the year ended at the end of such quarter, setting forth in each case in
comparative form the figures for the corresponding quarter and the corresponding portion of the
previous year, all certified (subject to normal year-end adjustments) as to fairness of
presentation, GAAP and consistency by the chief financial officer of Parent and (ii) a consolidated
balance sheet of the Borrower and its Subsidiaries as of the end of such quarter and the related
statement of income and statement of cash flows for such quarter and for the portion of the year
ended at the end of such quarter, setting forth in each case in comparative form the figures for
the corresponding quarter and the corresponding portion of the previous year, all certified
(subject to normal year-end adjustments) as to fairness of presentation, GAAP and consistency by
the chief financial officer of the Borrower;




          (c) simultaneously with the delivery of the financial statements referred to in subsections
(a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief financial
officer or chief accounting officer of Parent in the form of Exhibit C hereto (or in such
other form as the Agent may approve from time to time). Calculations of income, expense and value
associated with Real Estate or other Investments acquired or disposed of during any quarter will be
adjusted, where applicable;




          (d) upon the request of the Agent, copies of all financial statements, reports or proxy
statements sent to the shareholders of Parent;




          (e) simultaneously with the delivery of the financial statements referred to in subsections
(a) and (b) above, a current WIP Schedule;




          (f) upon the request of the Agent, copies of all registration statements (other than the
exhibits thereto and any registration statements on Form S-8 or its equivalent) and annual,
quarterly, monthly or special (8-K) reports which Parent or Borrower shall file with the SEC
provided that, in the case of annual and quarterly reports on Forms 10-K and 10-Q, respectively,
such reports shall be deemed to be delivered hereunder if posted on the Parent’s website; and




          (g) from time to time such other financial data and information in the possession of the
Borrower, each Guarantor or their respective Subsidiaries (including without limitation auditors’
management letters, status of litigation or investigations against the Borrower and any settlement
discussions relating thereto, property inspection and environmental reports




40









 







and information as to zoning and other legal and regulatory changes affecting the Borrower or
any Guarantor) as the Agent may reasonably request.



Any material to be delivered pursuant to this §7.4 may be delivered electronically directly to
Agent and the Lenders provided that such material is in a format reasonably acceptable to Agent,
and such material shall be deemed to have been delivered to Agent and the Lenders upon Agent’s
receipt thereof. Upon the request of Agent, Borrower and Parent shall deliver paper copies thereof
to Agent and the Lenders. Borrower and Parent authorize Agent and Arranger to disseminate any such
materials through the use of Intralinks, SyndTrak or any other electronic information dissemination
system, and the Borrower and Parent release Agent and the Lenders from any liability in connection
therewith.




     §7.5 Notices.



          (a) Defaults. The Borrower will promptly upon becoming aware of same notify the Agent
in writing of the occurrence of any Default or Event of Default, which notice shall describe such
occurrence with reasonable specificity and shall state that such notice is a “notice of default”.
If any Person shall give any notice or take any other action in respect of a claimed default
(whether or not constituting an Event of Default) under this Agreement or under any note, evidence
of indebtedness, indenture or other obligation to which or with respect to which the Borrower, any
Guarantor or any of their respective Subsidiaries is a party or obligor, whether as principal or
surety, and such default would permit the holder of such note or obligation or other evidence of
indebtedness to accelerate the maturity thereof, which acceleration would either cause a Default or
have a Material Adverse Effect, the Borrower shall forthwith give written notice thereof to the
Agent, describing the notice or action and the nature of the claimed default.




          (b) Violations of Law. The Borrower will promptly upon becoming aware of same notify
the Agent in writing if the Borrower, any Guarantor, or any of their respective Subsidiaries shall
receive any notification from any governmental authority alleging a violation of any applicable law
(including, without limitation, and Environmental Law) or any inquiry which, in each case, could
individually or in the aggregate reasonably be expected to have a Material Adverse Effect.




          (c) Claims Against Collateral. The Borrower will give notice to the Agent in writing
within five (5) Business Days of becoming aware of any material setoff, claims, withholdings or
other defenses to which any of the Collateral, or the rights of the Agent or the Lenders with
respect to the Collateral, are subject.




          (d) Litigation and Judgments. The Borrower will give notice to the Agent in writing
within five (5) Business Days of becoming aware of any litigation or proceedings threatened in
writing or any pending litigation and proceedings affecting the Borrower, any Guarantor or any of
their respective Subsidiaries or to which the Borrower, any Guarantor or any of their respective
Subsidiaries is or is to become a party involving an uninsured claim against any of the Borrower,
any Guarantor or any of their respective Subsidiaries that could either cause a Default or could
reasonably be expected to have a Material Adverse Effect and stating the nature and status of such
litigation or proceedings. The Borrower and each Guarantor will give




41









 







notice to the Agent, in writing, in form and detail reasonably satisfactory to the Agent and
each of the Lenders, within ten (10) days of any judgment not covered by insurance, whether final
or otherwise, against any of the Borrower, any Guarantor or any of their respective Subsidiaries in
an amount in excess of $5,000,000.00.




          (e) ERISA. The Borrower will give notice to the Agent within ten (10) Business Days
after the Borrower or any ERISA Affiliate (i) gives or is required to give notice to the PBGC of
any “reportable event” (as defined in §4043 of ERISA) with respect to any Guaranteed Pension Plan,
Multiemployer Plan or Employee Benefit Plan that could reasonably be expected to result in a
Material Adverse Effect, or knows that the plan administrator of any such plan has given or is
required to give notice of any such reportable event; (ii) receives any notice of complete or
partial withdrawal liability under Title IV of ERISA; or (iii) receives any notice from the PBGC
under Title IV or ERISA of an intent to terminate or appoint a trustee to administer any such plan.




          (f) Contract Defaults, Claims; Etc. The Borrower will promptly upon becoming aware of
same notify the Agent in writing of the occurrence of:




               (i) any default, event of default or claim for indemnification under any Contract or any claim
by or notice from any Person party thereto alleging any such default, event of default or claim in
an individual or aggregate amount in excess of $2,500,000.00, together with (1) copies of any such
notices, (2) a description of the nature of the default, event of default or claim or alleged
default, event of default or claim, (3) the amount of any liability related to such default, event
of default or claim (or, absent any specified amount of liability in such notice or by way of any
such allegation, the Borrower’s good faith estimate of the amount of any potential liability), and
(4) the actions taken, being taken or proposed to be taken by the Borrower with respect thereto;




               (ii) the failure or refusal of any Owner to make full and timely payment, in an individual or
aggregate amount in excess of $2,500,000.00, under any Contract with respect to an application for
payment or draw request from the Borrower or any of its Subsidiaries (other than in accordance with
any typical and customary retainage provisions contained in such Contract) together with the amount
of any such payment shortfall and a description of the reason(s) for such failure or refusal to pay
such full amount or to pay such full amount in a timely manner;




               (iii) the failure or refusal of the Borrower or any of its Subsidiaries to make full and
timely payment, in an individual or aggregate amount in excess of $2,500,000.00, under any
Subcontract with respect to an application for payment or draw request (other than in accordance
with any typical and customary retainage provisions contained in such Subcontract), together with
the amount of any such payment shortfall and a description of the reason(s) for such failure or
refusal to pay such full amount or to pay such full amount in a timely manner; and




               (iv) any claim made by a surety under any indemnity agreement relating to a Payment or
Performance Bond in excess of $2,500,000.00, any payment or performance by a surety under any
Payment or Performance Bond in excess of $2,500,000.00, or




42









 







the termination or cancellation of any Payment or Performance Bond in excess of $2,500,000.00
other than in accordance with the terms of the related Contract.




          (g) Notification of Lenders. Within five (5) Business Days after receiving any notice
under this §7.5, the Agent will forward a copy thereof to each of the Lenders, together with copies
of any certificates or other written information that accompanied such notice.




     §7.6 Existence; Maintenance of Properties.



          (a) The Borrower will preserve and keep in full force and effect its existence as a Wisconsin
corporation. Each Guarantor will preserve and keep in full force and effect its legal existence in
the jurisdiction of its incorporation or formation. The Borrower will cause each of its
Subsidiaries to preserve and keep in full force and effect their legal existence in the
jurisdiction of its incorporation or formation except where such failure has not had and could not
reasonably be expected to have a Material Adverse Effect. The Borrower will preserve and keep in
full force all of its rights and franchises and those of its Subsidiaries, the preservation of
which is necessary to the conduct of their business (except with respect to Subsidiaries of
Borrower, where such failure has not had and could not reasonably be expected to have a Material
Adverse Effect). Parent shall at all times comply with all requirements and applicable laws and
regulations necessary to maintain REIT Status and shall continue to receive REIT Status. The
common stock of Parent shall at all times be listed for trading and be traded on NASDAQ, the New
York Stock Exchange or another nationally recognized exchange unless otherwise consented to by the
Required Lenders.




          (b) The Borrower (i) will cause all of its properties and those of its Subsidiaries used or
useful in the conduct of its business or the business of its Subsidiaries to be maintained and kept
in good condition, repair and working order (ordinary wear and tear and damage by casualty
excepted) and supplied with all necessary equipment, and (ii) will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof in all cases in which the
failure so to do would cause a Material Adverse Effect.




     §7.7 Insurance. The Borrower, Parent and their respective Subsidiaries (as
applicable) will procure and maintain or cause to be procured and maintained insurance covering the
Borrower, Parent and their respective Subsidiaries (as applicable) and their respective properties
and assets including, without limitation, business interruption and builder’s risk insurance in
such amounts and against such risks and casualties as are ordinarily insured against by owners of
similar businesses and which are customary for properties of similar character and location, due
regard being given to the type of improvements thereon, their construction, location, use and
occupancy; it being understood and agreed that the foregoing shall not modify any obligation of a
tenant under a Lease with regard to the placement and maintenance of insurance.



     §7.8 Taxes; Liens. The Borrower and the Guarantors will, and will cause their
respective Subsidiaries to, duly pay and discharge, or cause to be paid and discharged, before the
same shall become delinquent, all taxes, assessments and other governmental charges imposed upon
them or upon their respective properties and assets, sales and activities, or any part thereof, or
upon the income or profits therefrom as well as all claims for labor, materials or supplies that if
unpaid might by law become a lien or charge upon any of its property or other Liens affecting



43









 




any of the Collateral or other property of Borrower, any Guarantor or their respective
Subsidiaries, provided that any such tax, assessment, charge or levy or claim need not be
paid if the validity or amount thereof shall currently be contested in good faith by appropriate
proceedings by Borrower, the Guarantors, or their respective Subsidiaries which shall suspend the
collection thereof with respect to such property, and provided, further, that
forthwith upon the commencement of proceedings to foreclose any Lien that may have attached as
security therefor, the Borrower, any Guarantor or any such Subsidiary either (i) will provide a
bond issued by a surety reasonably acceptable to the Agent or other collateral satisfactory to
Agent and sufficient to stay all such proceedings or (ii) if no such bond or other collateral is
provided, will pay each such tax, assessment, charge or levy.




     §7.9 Inspection of Properties and Books. The Borrower and the Guarantors will, and
will cause their respective Subsidiaries to, permit the Agent and the Lenders, at the Borrower’s
expense and upon reasonable prior notice, to visit and inspect any of the properties of the
Borrower, Guarantors or any of their respective Subsidiaries (subject to the rights of tenants), to
examine the books of account of the Borrower, Guarantors and their respective Subsidiaries (and to
make copies thereof and extracts therefrom) and to discuss the affairs, finances and accounts of
the Borrower, Guarantors and their respective Subsidiaries with, and to be advised as to the same
by, their respective officers, all at such reasonable times and intervals as the Agent or any
Lender may reasonably request, provided that so long as no Default or Event of Default
shall have occurred and be continuing, the Borrower shall not be required to pay for such visits
and inspections more often than once in any twelve (12) month period. In the event that the Agent
or a Lender shall visit and inspect a property of a Subsidiary of Borrower, such visit and
inspection shall be made with a representative of Borrower (and Borrower agrees to use reasonable
efforts to make such representative available). The Lenders shall use good faith efforts to
coordinate such visits and inspections so as to minimize the interference with and disruption to
the normal business operations of the Borrower, the Guarantors, their respective Subsidiaries and
any tenants.



     §7.10 Compliance with Laws, Contracts, Licenses, and Permits. The Borrower and the
Guarantors will, and will cause each of their respective Subsidiaries to, comply in all respects
with (i) all applicable laws and regulations now or hereafter in effect wherever its business is
conducted, including all Environmental Laws, (ii) the provisions of its corporate charter,
partnership agreement, limited liability company agreement or declaration of trust, as the case may
be, and other charter documents and bylaws, (iii) all agreements and instruments to which it is a
party or by which it or any of its properties are or may be bound, including, without limitation,
each of its Contracts, (iv) all applicable decrees, orders, and judgments, and (v) all licenses and
permits required by applicable laws and regulations for the conduct of its business or the
ownership, use or operation of its properties, except where a failure to so comply with any of
clauses (i) through (v) could not reasonably be expected to have a Material Adverse Effect.
Borrower shall develop and implement such programs, policies and procedures as are necessary to
comply with the Patriot Act and shall promptly advise Agent in writing in the event that Borrower
shall determine that any investors in Borrower are in violation of such act.



     §7.11 Further Assurances. The Borrower and each Guarantor will cooperate with the
Agent and the Lenders and execute such further instruments and documents as the Lenders or the



44









 




Agent shall reasonably request to carry out to their satisfaction the transactions
contemplated by this Agreement and the other Loan Documents.




     §7.12 Acquisition of Interest Rate Protection. The Borrower shall acquire and at all
times maintain an interest rate cap, swap, collar or other interest rate protection reasonably
acceptable to Agent providing to the Borrower a cap on one month LIBOR Rate on a notional amount of
not less than $10,000,000.00, at a rate not to exceed three percent (3.0%) per annum (the “Interest
Hedge”). The term of the Interest Hedge shall not expire before the Maturity Date (without regard
to any extension thereof); provided that with the approval of Agent the maturity of the Interest
Hedge may expire prior to the Maturity Date, and provided further that a replacement Interest Hedge
satisfying the requirements of this Agreement is delivered to Agent at least fifteen (15) days
prior to the termination of the existing Interest Hedge, and Borrower further delivers to Agent
such amendments to the Assignment of Hedge and consents to and acknowledgments of such pledge by
the provider of the Interest Hedge as Agent may reasonably require. The Interest Hedge shall be
provided by any bank which is a party to this Credit Agreement or a bank or other financial
institution that has unsecured, uninsured and unguaranteed long-term debt which is rated at least
A-3 by Moody’s Investor Service, Inc. or at least A- by Standard & Poor’s Corporation. In
connection with the Interest Hedge, the Borrower shall execute and deliver to Agent for the benefit
of the Lenders the Assignment of Hedge. The Borrower shall upon the request of the Agent provide
to the Agent evidence that the Interest Hedge is in effect.



     §7.13 Business Operations. The Borrower, the Guarantor and their respective
Subsidiaries shall operate their respective businesses in substantially the same manner and in
substantially the same fields and lines of business as such business is now conducted and such
other lines of business which are reasonably related or incidental thereto.



     §7.14 Distributions of Income to the Borrower. The Borrower shall cause all of its
Subsidiaries (subject to the terms of any loan documents under which such Subsidiary is the
borrower) to promptly distribute to the Borrower (but not less frequently than once each calendar
quarter, unless otherwise approved by the Agent), whether in the form of dividends, distributions
or otherwise, all profits, proceeds or other income relating to or arising from its Subsidiaries’
use, operation, financing, refinancing, sale or other disposition of their respective assets and
properties after (a) the payment by each Subsidiary of its debt service, operating expenses,
capital improvements and leasing commissions for such quarter and (b) the establishment of
reasonable reserves for the payment of operating expenses not paid on at least a quarterly basis
and capital improvements and tenant improvements to be made to such Subsidiary’s assets and
properties approved by such Subsidiary in the course of its business consistent with its past
practices.



§8. NEGATIVE COVENANTS.




     The Borrower covenants and agrees that, so long as any Loan or Note is outstanding or any of
the Lenders has any obligation to make any Loans hereunder:



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     §8.1 Restrictions on Indebtedness. The Borrower will not, and will not permit its
respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently
or otherwise, with respect to any Indebtedness other than:



          (a) Indebtedness to the Lenders arising under any of the Loan Documents and the Hedge
Obligations;




          (b) current liabilities of the Borrower or its Subsidiaries incurred in the ordinary course of
business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit
except for credit on an open account basis customarily extended and in fact extended in connection
with normal purchases of goods and services;




          (c) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims
for labor, materials and supplies to the extent that payment therefor shall not at the time be
required to be made in accordance with the provisions of §7.8;




          (d) Indebtedness in respect of judgments only to the extent, for the period and for an amount
not resulting in a Default;




          (e) endorsements for collection, deposit or negotiation and warranties of products or
services, in each case incurred in the ordinary course of business;




          (f) Subordinated Debt, which is subordinate to the repayment of the Obligations pursuant to
the Subordination Agreement;




          (g) Indebtedness in respect of guaranties and warranties contained in Contracts entered into
in the ordinary course of business;




          (h) indemnification obligations in respect of Payment and Performance Bonds in an amount not
to exceed $20,000,000.00; and




          (i) Obligations (contingent or otherwise) of Borrower or any of its Subsidiaries existing or
arising under any Derivatives Contract, provided that (i) such obligations are (or were)
entered into by such Person in the ordinary course of business for the purpose of directly
mitigating interest rate fluctuations, and not for purposes of speculation or taking a “market
view”; and (ii) such Derivatives Contract does not contain any provision exonerating the
non-defaulting party from its obligation to make payments on outstanding transactions to the
defaulting party.




     Notwithstanding anything in this Agreement to the contrary, none of the Borrower or its
Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or
otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under
the Loan Documents) with respect to which there is a Lien on (a) any Equity Interests, right to
receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person
or (b) any of their respective properties or assets.



     §8.2 Restrictions on Liens, Etc. The Borrower will not, and will not permit its
Subsidiaries to (a) create or incur or suffer to be created or incurred or to exist any lien,
security



46









 




title, encumbrance, mortgage, pledge, negative pledge, charge, restriction or other security
interest of any kind upon any of their respective property or assets of any character whether now
owned or hereafter acquired, or upon the income or profits therefrom; (b) transfer any of their
property or assets or the income or profits therefrom for the purpose of subjecting the same to the
payment of Indebtedness or performance of any other obligation in priority to payment of its
general creditors; (c) acquire any property or assets upon conditional sale or other title
retention or purchase money security agreement, device or arrangement; (d) suffer to exist for a
period of more than thirty (30) days after the same shall have been incurred any Indebtedness or
claim or demand against any of them that if unpaid could by law or upon bankruptcy or insolvency,
or otherwise, be given any priority whatsoever over any of their general creditors; (e) sell,
assign, pledge or otherwise transfer any accounts, contract rights, general intangibles, chattel
paper or instruments, with or without recourse; or (f) incur or maintain any obligation to any
holder of Indebtedness of any of such Persons which prohibits the creation or maintenance of any
lien securing the Obligations (collectively, “Liens”); provided that notwithstanding
anything to the contrary contained herein, the Borrower and any such Subsidiary may create or incur
or suffer to be created or incurred or to exist:




               (i) Liens on properties to secure taxes, assessments and other governmental charges (excluding
any Lien imposed pursuant to any of the provisions of ERISA or pursuant to any Environmental Laws)
or claims for labor, material or supplies in respect of obligations not then delinquent or which
are being contested as provided in this Agreement;




               (ii) Liens on assets other than (A) the Collateral or (B) any direct or indirect interest of
Borrower or any Subsidiary of Borrower in any Guarantor, in respect of judgments permitted by
§8.1(d);




               (iii) deposits or pledges made in connection with, or to secure payment of, workers’
compensation, unemployment insurance, old age pensions or other social security obligations;




               (iv) Liens and encumbrances on properties consisting of easements, rights of way, zoning
restrictions, leases and other occupancy agreements, restrictions on the use of real property and
defects and irregularities in the title thereto, landlord’s or lessor’s liens under leases to which
the Borrower, any Guarantor or a Subsidiary of such Person is a party, and other minor non-monetary
liens or encumbrances none of which interferes materially with the use of the property affected in
the ordinary conduct of the business of the Borrower, the Guarantors or their Subsidiaries, which
defects do not individually or in the aggregate have a materially adverse effect on the business of
the Borrower or any Guarantor individually;




               (v) Liens, negative pledges and other restrictions in favor of the Agent under the Loan
Documents to secure the Obligations and the Hedge Obligations;




               (vi) deposits to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;




47









 








               (vii) non-consensual Liens placed by Subcontractors in connection with a payment dispute in
the ordinary course of business; provided that any such Liens shall (x) only be on assets
related to Construction Work performed by such Subcontractors and (y) not exceed $2,500,000.00 in
the aggregate at any one time; and




               (viii) Liens on property or assets of the Borrower and its Subsidiaries acquired upon
conditional sale or other title retention or purchase money security agreement, device or
arrangement in an aggregate amount not to exceed $2,500,000.00 at any one time.




     §8.3 Restrictions on Investments. Neither the Borrower nor any of its Subsidiaries
will make or permit to exist or to remain outstanding any Investment except Investments in:



          (a) marketable direct or guaranteed obligations of the United States of America that mature
within one (1) year from the date of purchase by the Borrower or its Subsidiary;




          (b) marketable direct obligations of any of the following: Federal Home Loan Mortgage
Corporation, Student Loan Marketing Association, Federal Home Loan Banks, Federal National Mortgage
Association, Government National Mortgage Association, Bank for Cooperatives, Federal Intermediate
Credit Banks, Federal Financing Banks, Export-Import Bank of the United States, Federal Land Banks,
or any other agency or instrumentality of the United States of America;




          (c) demand deposits, certificates of deposit, bankers acceptances and time deposits of United
States banks having total assets in excess of $100,000,000.00; provided, however,
that the aggregate amount at any time so invested with any single bank having total assets of less
than $1,000,000,000.00 will not exceed $200,000.00;




          (d) securities commonly known as “commercial paper” issued by a corporation organized and
existing under the laws of the United States of America or any State which at the time of purchase
are rated by Moody’s Investors Service, Inc. or by Standard & Poor’s Corporation at not less than
“P 1” if then rated by Moody’s Investors Service, Inc., and not less than “A 1”, if then rated by
Standard & Poor’s Corporation;




          (e) mortgage-backed securities guaranteed by the Government National Mortgage Association, the
Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation and other
mortgage-backed bonds which at the time of purchase are rated by Moody’s Investors Service, Inc. or
by Standard & Poor’s Corporation at not less than “Aa” if then rated by Moody’s Investors Service,
Inc. and not less than “AA” if then rated by Standard & Poor’s Corporation;




          (f) repurchase agreements having a term not greater than ninety (90) days and fully secured by
securities described in the foregoing subsection (a), (b) or (e) with banks described in the
foregoing subsection (c) or with financial institutions or other corporations having total assets
in excess of $500,000,000.00;




          (g) shares of so-called “money market funds” registered with the SEC under the Investment
Company Act of 1940 which maintain a level per-share value, invest principally




48









 







in investments described in the foregoing subsections (a) through (f) and have total assets in
excess of $50,000,000.00;




          (h) Investments by Borrower in Subsidiaries that are directly or indirectly one hundred
percent (100%) owned by the Borrower;




          (i) Investments by Borrower and its Subsidiaries in respect of inventory and equipment used in
the ordinary course of their respective businesses;




          (j) Guaranties permitted by §8.1;




          (k) Investments in respect of Construction Work performed by Borrower and its Subsidiaries at
Projects pursuant to Contracts;




          (l) advances to officers, directors and employees of Borrower and its Subsidiaries in an
aggregate amount not to exceed $250,000.00 at any time outstanding, for travel, entertainment,
relocation and analogous ordinary business purposes; and




          (m) Investments consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course of business, and
Investments received in satisfaction or partial satisfaction thereof in the ordinary course of
business from financially troubled account debtors to the extent reasonably necessary in order to
prevent or limit loss.




     §8.4 Merger, Consolidation. Neither the Borrower nor Parent will, nor will the
Borrower or Parent permit any of their respective Subsidiaries to, become a party to any
dissolution, liquidation, disposition of all or substantially all of its assets or business,
merger, reorganization, consolidation or other business combination or agree to effect any asset
acquisition, stock acquisition or other acquisition individually or in a series of transactions
which may have a similar effect as any of the foregoing, in each case without the prior written
consent of the Required Lenders except for (a) the merger or consolidation of one or more of the
Subsidiaries of the Borrower (other than any Subsidiary that is a Guarantor) with and into the
Borrower (it being understood and agreed that in any such event the Borrower will be the surviving
Person), (b) the merger or consolidation of one or more of the Subsidiaries of Parent (other than
Borrower or any Subsidiary of the Borrower) with and into Parent or another Subsidiary of Parent,
(c) the merger or consolidation of two or more Subsidiaries of the Borrower; provided that
no such merger or consolidation shall involve any Subsidiary that is a Guarantor unless the
surviving Person is a Guarantor, (d) dispositions of all or substantially all of the assets (upon
voluntary liquidation or otherwise) of a Subsidiary of the Borrower to the Borrower or another
Subsidiary of the Borrower; provided that if the transferor of the assets is a Guarantor,
the transferee of such assets must either be the Borrower or another Guarantor that is a Subsidiary
of the Borrower and (e) dispositions of all or substantially all of the assets (upon voluntary
liquidation or otherwise) of a Subsidiary of Parent (other than Borrower or any Subsidiary of the
Borrower) to Parent or another Subsidiary of Parent; provided that if the transferor of the
assets is a Guarantor, the transferee of such assets must either be the Borrower or another
Guarantor. Nothing in this §8.4 shall prohibit (x) the dissolution of a Subsidiary that



49









 




is not a Guarantor which has disposed of its assets in accordance with this Agreement or (y)
the Merger.




     §8.5 Compliance with Environmental Laws. Neither the Borrower nor Parent will, nor
will either of them permit any of its respective Subsidiaries or any other Person to, do any of the
following: (a) use any of the Real Estate or any portion thereof as a facility for the handling,
processing, storage or disposal of Hazardous Substances, except for small quantities of Hazardous
Substances used in the ordinary course of business and in material compliance with all applicable
Environmental Laws, (b) cause or permit to be located on any of the Real Estate any underground
tank or other underground storage receptacle for Hazardous Substances except in compliance with
Environmental Laws, (c) generate any Hazardous Substances on any of the Real Estate except in
compliance with Environmental Laws, (d) conduct any activity at any Real Estate or use any Real
Estate in any manner that could reasonably be contemplated to cause a Release of Hazardous
Substances on, upon or into the Real Estate or any surrounding properties or any threatened Release
of Hazardous Substances which could reasonably be expected to give rise to liability under CERCLA
or any other Environmental Law, or (e) directly or indirectly transport or arrange for the
transport of any Hazardous Substances (except in compliance with all Environmental Laws), except
where any such use, permitted location, generation, conduct, transportation or other activity has
not had and could not reasonably be expected to have a Material Adverse Effect.



     §8.6 Distributions.



          (a) In the event that a Default or an Event of Default shall have occurred and be continuing,
(i) the Borrower shall make no Distributions and (ii) Parent shall make no Distributions other than
Distributions in an amount equal to the minimum distributions under the Code to maintain the REIT
Status of Parent, in each case as evidenced by a certification of the principal financial or
accounting officer of the Parent containing calculations in detail reasonably satisfactory in form
and substance to the Agent.




          (b) Notwithstanding the foregoing, at any time when an Event of Default under §11.1(a), (b),
(g), (h) or (i) shall have occurred or the maturity of the Obligations has been accelerated, Parent
shall not make any Distributions whatsoever, directly or indirectly.




     §8.7 Asset Sales. The Borrower will not, and will not permit its Subsidiaries or any
Guarantor to, sell, transfer or otherwise dispose of any material asset other than pursuant to a
bona fide arm’s length transaction. In addition, neither the Borrower, any Guarantor nor any
Subsidiary thereof shall sell, transfer, or otherwise dispose of any asset in a single or a series
of related transactions which would negatively impact revenues by greater than ten percent (10.0%)
of Borrower and its Subsidiaries on a consolidated basis without the prior written approval of the
Required Lenders.



     §8.8 Restriction on Prepayment of Indebtedness. The Borrower will not, and will not
permit its Subsidiaries to, (a) prepay, redeem, defease, purchase or otherwise retire the principal
amount, in whole or in part, of any Indebtedness other than the Obligations and the Hedge
Obligations after the occurrence of any Event of Default; provided, that the foregoing
shall not prohibit the prepayment of Indebtedness which is financed solely from the proceeds of a
new



50









 




loan which would otherwise be permitted by the terms of §8.1; and (b) modify any document
evidencing any Indebtedness (other than the Obligations) to accelerate the maturity date of such
Indebtedness after the occurrence of an Event of Default.




     §8.9 Modifications to Certain Agreements. The Borrower and Parent will not, and will
not permit their respective Subsidiaries to, enter into any amendment or modification to any
Contract or any Acquisition Document which could reasonably be expected to have a Material Adverse
Effect without the Agent’s prior written consent.



     §8.10 Derivatives Contracts. Neither the Borrower nor any of its Subsidiaries shall
contract, create, incur, assume or suffer to exist any Derivatives Contracts except for interest
rate swap, collar, cap or similar agreements providing interest rate protection and currency swaps
and currency options made in the ordinary course of business and permitted pursuant to §8.1, or
required by §7.12.



     §8.11 Transactions with Affiliates. Neither Parent nor the Borrower shall, and
neither of them shall permit any Subsidiary of the Borrower or any Guarantor to, permit to exist or
enter into, any transaction (including the purchase, sale, lease or exchange of any property or the
rendering of any service) with any Affiliate (but not including any Subsidiary of Parent or the
Borrower), except (i) transactions set forth on Schedule 6.15 attached hereto, (ii)
transactions in the ordinary course of business pursuant to the reasonable requirements of the
business of such Person and upon fair and reasonable terms which are no less favorable to such
Person than would be obtained in a comparable arm’s length transaction with a Person that is not an
Affiliate, (iii) transactions between or among the Borrower and its Subsidiaries and (iv)
transactions in which the Parent or any of its Subsidiaries engages the Borrower or any of its
Subsidiaries to perform work on its behalf.



     §8.12 Equity Pledges. Notwithstanding anything in this Agreement to the contrary,
Parent will not create or incur or suffer to be created or incurred any Lien on any direct or
indirect legal, equitable or beneficial interest of Parent in Borrower, including, without
limitation, any Distributions or rights to Distributions on account thereof.



     §8.13 Subordinated Debt. The Borrower and its Subsidiaries shall be permitted to pay
only pre-default accrued but unpaid interest on the Subordinate Debt and only at such times and to
the extent that no Default or Event of Default exists or would arise as a result thereof. Without
the prior written consent of the Required Lenders, which consent may be withheld by the Required
Lenders in their sole and absolute discretion, neither the Borrower nor any of its Subsidiaries
shall (i) modify or amend the Subordinate Debt or any agreements evidencing or relating thereto,
(ii) prepay, amortize, purchase, retire, redeem or otherwise acquire the Subordinate Debt, or (iii)
make any payments on the Subordinate Debt except as permitted in this §8.13.



     §8.14 Parent Restrictions. Borrower shall not transfer any Subsidiary or
Unconsolidated Affiliate of Borrower to Parent, and neither Borrower nor any Subsidiary or
Unconsolidated Affiliate of Borrower shall transfer any of its assets to Parent (other than
Distributions by Borrower to Parent permitted pursuant to §8.6).



51









 





     §8.15 Compliance with Covenants in Senior Revolving Loan Agreement. In the event that
the Senior Revolving Loan Agreement shall terminate or otherwise be of no force or effect, then the
obligation of the Borrower hereunder to perform each and every covenant therein and to restate and
reaffirm every representation and warranty therein shall survive notwithstanding such termination.
Parent shall, or shall cause Borrower to, furnish to Agent each of the financial statements,
reports, compliance certificates and other items and information required under §§7.01, 7.02 and
7.03 of the Senior Revolving Loan Agreement to be delivered to the “Agent” or the “Lenders”
thereunder, in the form and on the dates required by the Senior Revolving Loan Agreement to be
delivered to the “Agent” or the “Lenders” for so long as this Agreement is in effect; provided that
the delivery of such items to the Lenders as “Lenders” and the “Agent” under the Senior Revolving
Loan Agreement shall satisfy the foregoing requirement. Upon the request of Agent, at any time
following the termination of the Senior Revolving Loan Agreement, the Borrower and Guarantors shall
promptly enter into such amendments to the Loan Documents as Agent may reasonably request to
incorporate some or all of the representatives, warranties and covenants of the Senior Revolving
Loan Agreement into the Loan Documents. Nothing contained in this §8.15 shall waive any obligation
the Borrower may otherwise have pursuant to the provisions of §3.2.



     §8.16 More Restrictive Agreements. Should Parent or any of its Subsidiaries enter
into or modify any agreement pertaining to any existing or future Indebtedness (including any
amendments to any Senior Revolving Loan Document), which establishes more restrictive financial
covenants (or any other provision which may have the same practical effect as any of the foregoing)
on the Parent and its Subsidiaries than those contained in Section 10 of the Guaranty, Parent shall
promptly notify the Agent and, if requested by the Required Lenders, the Borrower, Guarantors, the
Agent, and the Required Lenders shall promptly amend this Agreement and/or the other Loan Documents
to include some or all of such more restrictive financial covenants or provisions as determined by
the Required Lenders in their sole discretion. Each of the Borrower and Parent agrees to deliver
to the Agent copies of any such agreements or documents (or modifications thereof) simultaneously
with the effectiveness of the same as a Senior Revolving Loan Document.



§9. FINANCIAL COVENANTS.




     The Borrower covenants and agrees that, so long as any Loan or Note is outstanding or any
Lender has any obligation to make any Loans hereunder:



     §9.1 Minimum Adjusted Consolidated EBITDA. The Borrower will not permit at any time
its Adjusted Consolidated EBITDA to be less than $22,500,000.00.



     §9.2 Consolidated Senior Indebtedness to Adjusted Consolidated EBITDA. The Borrower
will not permit the ratio of its Consolidated Senior Indebtedness to Adjusted Consolidated EBITDA
to exceed the following respective ratios during the following respective periods:



          (a) at any time on or prior to June 30, 2009, 4.25 to 1.00;




52









 








          (b) at any time on or after July 1, 2009 and on or prior to November 30, 2009, 3.75 to 1.00;




          (c) at any time on or after December 1, 2009 and on or prior to the Maturity Date (without
giving effect to any extension thereof), 3.25 to 1.00; or




          (d) at any time following the extension of the Maturity Date pursuant to §2.5, 3.00 to 1.00.




     §9.3 Consolidated Total Indebtedness to Adjusted Consolidated EBITDA. The Borrower
will not permit the ratio of its Consolidated Total Indebtedness to Adjusted Consolidated EBITDA to
exceed the following respective ratios during the following respective periods:



          (a) at any time on or prior to March 31, 2010, 5.50 to 1.00; or




          (b) at any time thereafter, 4.50 to 1.00.




     §9.4 Adjusted Consolidated EBITDA to Consolidated Fixed Charges. The Borrower will
not permit the ratio of Adjusted Consolidated EBITDA to Consolidated Fixed Charges of the Borrower
and their its Subsidiaries, each for the four (4) most recently ended calendar quarters, to be less
than 2.00 to 1.00.



§10. CLOSING CONDITIONS.




     The obligation of the Lenders to make the Loans shall be subject to the satisfaction of the
following conditions precedent:



     §10.1 Loan Documents. Each of the Loan Documents shall have been duly executed and
delivered by the respective parties thereto and shall be in full force and effect. The Agent shall
have received a fully executed counterpart of each such document, except that each Lender shall
have received the fully executed original of its Note.



     §10.2 Certified Copies of Organizational Documents. The Agent shall have received
from the Borrower and each Guarantor a copy, certified as of a recent date by the appropriate
officer of each State in which such Person is organized and a duly authorized officer, partner or
member of such Person, as applicable, to be true and complete, of the partnership agreement,
corporate charter or operating agreement and/or other organizational agreements of the Borrower and
each Guarantor, as applicable, and its qualification to do business, as applicable, as in effect on
such date of certification.



     §10.3 Resolutions. All action on the part of the Borrower and each Guarantor, as
applicable, necessary for the valid execution, delivery and performance by such Person of this
Agreement and the other Loan Documents to which such Person is or is to become a party shall have
been duly and effectively taken, and evidence thereof reasonably satisfactory to the Agent shall
have been provided to the Agent.



53









 





     §10.4 Incumbency Certificate; Authorized Signers. The Agent shall have received from
Borrower and each Guarantor an incumbency certificate, dated as of the Closing Date, signed by a
duly authorized officer of such Person and giving the name and bearing a specimen signature of each
individual who shall be authorized to sign, in the name and on behalf of such Person, each of the
Loan Documents to which such Person is or is to become a party. The Agent shall have also received
from Borrower a certificate, dated as of the Closing Date, signed by a duly authorized
representative of Borrower and giving the name and specimen signature of each Authorized Officer
who shall be authorized to make Conversion/Continuation Requests and to give notices and to take
other action on behalf of the Borrower under the Loan Documents.



     §10.5 Opinion of Counsel. The Agent shall have received an opinion addressed to the
Lenders and the Agent and dated as of the Closing Date from counsel to the Borrower and each
Guarantor in form and substance reasonably satisfactory to the Agent.



     §10.6 Payment of Fees. The Borrower shall have paid to the Agent the fees payable
pursuant to §4.2.



     §10.7 Acquisition; Acquisition Documents. The Agent shall have received from the
Borrower (a) evidence satisfactory to it that the Acquisition shall have been consummated in
accordance with the terms of the Acquisition Agreement and in compliance with applicable law and
regulatory approvals, and (b) true and correct copies of all Acquisition Documents, certified as
such of the Closing Date by an Authorized Officer of the Borrower. The Lenders shall be satisfied
with the capitalization and capital structure of Parent and its Subsidiaries after giving effect to
the Acquisition and Merger, including without limitation (x) the terms of and security for the
Senior Revolving Loan and (y) all cash payments, issuances of equity and capital contributions to
be made to or by Parent and its Subsidiaries in connection with the Acquisition and Merger.



     §10.8 Performance; No Default. Borrower and the Guarantor shall have performed and
complied with all terms and conditions herein required to be performed or complied with by it on or
prior to the Closing Date, and on the Closing Date there shall exist no Default or Event of
Default.



     §10.9 Representations and Warranties. The representations and warranties made by the
Borrower and the Guarantors in the Loan Documents or otherwise made by or on behalf of the
Borrower, the Guarantors and their respective Subsidiaries in connection therewith or after the
date thereof shall have been true and correct in all material respects when made and shall also be
true and correct in all material respects on the Closing Date.



     §10.10 Proceedings and Documents. All proceedings in connection with the transactions
contemplated by this Agreement and the other Loan Documents shall be reasonably satisfactory to the
Agent and the Agent’s counsel in form and substance, and the Agent shall have received all
information and such counterpart originals or certified copies of such documents and such other
certificates, opinions, assurances, consents, approvals or documents as the Agent and the Agent’s
counsel may reasonably require.



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     §10.11 Compliance Certificate. The Agent shall have received a Compliance Certificate
dated as of the date of the Closing Date demonstrating compliance with each of the covenants
calculated therein as of the most recent calendar quarter for which Borrower has provided financial
statements under §6.4.



     §10.12 Interest Hedge. The Agent shall have received evidence satisfactory to Agent
that the Borrower has acquired the Interest Hedge.



     §10.13 Consents. The Agent shall have received evidence reasonably satisfactory to
the Agent that all necessary stockholder, partner, member or other consents required in connection
with the consummation of the transactions contemplated by this Agreement and the other Loan
Documents have been obtained.



     §10.14 Senior Revolving Loan. The Agent shall have received evidence reasonably
satisfactory to the Agent that all conditions precedent to the closing of the Senior Revolving Loan
have been satisfied or waived.



     §10.15 Existing MEA Loan Agreement. The Agent shall have received evidence reasonably
satisfactory to the Agent that all obligations of the borrowers under the Existing MEA Loan
Agreement (other than those obligations that survive termination of the Existing MEA Loan Agreement
in accordance with its terms) have been indefeasibly paid in full and the commitments of the
lender(s) thereunder have been terminated and are of no further force or effect and all liens, if
any, in respect of such obligations have been terminated and released of record.



     §10.16 Contribution Agreement. The Agent shall have received an executed counterpart
of the Contribution Agreement.



     §10.17 Solvency Certificate. The Agent shall have received a certificate of an
Authorized Officer of Parent as to the financial condition and solvency of (i) Parent and its
Subsidiaries and (ii) the Borrower and its Subsidiaries (after giving effect to the Acquisition and
the incurrence of indebtedness related thereto).



     §10.18 Intercreditor Agreement. The Intercreditor Agreement shall have been duly
executed and delivered by the respective parties thereto and shall be in full force and effect.



     §10.19 Other. The Agent shall have reviewed such other documents, instruments,
certificates, opinions, assurances, consents and approvals as the Agent or the Agent’s Special
Counsel may reasonably have requested.



§11. EVENTS OF DEFAULT; ACCELERATION; ETC.




     §11.1 Events of Default and Acceleration. If any of the following events (“Events of
Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such
notice or lapse of time, “Defaults”) shall occur:



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          (a) the Borrower shall fail to pay any principal of the Loans when the same shall become due
and payable, whether at the stated date of maturity or any accelerated date of maturity or at any
other date fixed for payment;




          (b) the Borrower shall fail to pay any interest on the Loans or any fees or other sums due
hereunder or under any of the other Loan Documents when the same shall become due and payable,
whether at the stated date of maturity or any accelerated date of maturity or at any other date
fixed for payment;




          (c) any of the Borrower, any Guarantor, or any of their respective Subsidiaries shall fail to
perform any other term, covenant or agreement contained in §9.1, §9.2, §9.3 or §9.4 or §§10(b)-(e)
of the Guaranty applicable to such Person;




          (d) any of the Borrower, any Guarantor, or any of their respective Subsidiaries shall fail to
perform any other term, covenant or agreement contained herein or in any of the other Loan
Documents which they are required to perform (other than those specified in the other subclauses of
this §11 or in the other Loan Documents);




          (e) any representation or warranty made by or on behalf of the Borrower, any Guarantor, or any
of their respective Subsidiaries in this Agreement or any other Loan Document, or any report,
certificate, financial statement, request for a Loan, or in any other document or instrument
delivered pursuant to or in connection with this Agreement, any advance of a Loan or any of the
other Loan Documents shall prove to have been false in any material respect upon the date when made
or deemed to have been made or repeated;




          (f) the Borrower, any Guarantor or any of their respective Subsidiaries shall fail to pay when
due (including without limitation at maturity), or within any applicable period of grace, any
obligation for borrowed money or credit received or other Indebtedness, or fail to observe or
perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing
or securing any such borrowed money or credit received or other Indebtedness for such period of
time as would permit (assuming the giving of appropriate notice if required) the holder or holders
thereof or of any obligations issued thereunder to accelerate the maturity thereof or require the
prepayment, redemption or purchase thereof; provided, however, that the events
described in this §11.1(f) shall not constitute an Event of Default unless such failure to perform,
together with other failures to perform as described in this §11.1(f), involve singly or in the
aggregate obligations for Indebtedness totaling in excess of $10,000,000.00;




          (g) any of the Borrower, any Guarantor, or any of their respective Subsidiaries, (i) shall
make an assignment for the benefit of creditors, or admit in writing its general inability to pay
or generally fail to pay its debts as they mature or become due, or shall petition or apply for the
appointment of a trustee or other custodian, liquidator or receiver for it or any substantial part
of its assets, (ii) shall commence any case or other proceeding relating to it under any
bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or
liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any
action to authorize or in furtherance of any of the foregoing;




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          (h) a petition or application shall be filed for the appointment of a trustee or other
custodian, liquidator or receiver of any of the Borrower, any Guarantor, or any of their respective
Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding
shall be commenced against any such Person under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction,
now or hereafter in effect, and any such Person shall indicate its approval thereof, consent
thereto or acquiescence therein or such petition, application, case or proceeding shall not have
been dismissed within sixty (60) days following the filing or commencement thereof;




          (i) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for
any of the Borrower, any Guarantor, or any of their respective Subsidiaries or adjudicating any
such Person, bankrupt or insolvent, or approving a petition in any such case or other proceeding,
or a decree or order for relief is entered in respect of any such Person in an involuntary case
under federal bankruptcy laws as now or hereafter constituted;




          (j) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty
(60) days, whether or not consecutive, one or more uninsured or unbonded final judgments against
Borrower, any Guarantor or any of their respective Subsidiaries that, either individually or in the
aggregate, exceed $10,000,000.00 per occurrence or during any twelve (12) month period;




          (k) any of the Loan Documents or the Contribution Agreement shall be canceled, terminated,
revoked or rescinded otherwise than in accordance with the terms thereof or the express prior
written agreement, consent or approval of the Lenders, or any action at law, suit in equity or
other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the Contribution
Agreement shall be commenced by or on behalf of any of the Borrower or any Guarantor, or any court
or any other governmental or regulatory authority or agency of competent jurisdiction shall make a
determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of
the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance
with the terms thereof;




          (l) any dissolution, termination, partial or complete liquidation, merger or consolidation of
any of Parent, the Borrower or any of their respective Subsidiaries shall occur or any sale,
transfer or other disposition of the assets of any of Parent, the Borrower or any of their
respective Subsidiaries shall occur other than as permitted under the terms of this Agreement or
the other Loan Documents;




          (m) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred
and the Required Lenders shall have determined in their reasonable discretion that such event
reasonably could be expected to result in liability of any of the Borrower, any Guarantor or any of
their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount
exceeding $15,000,000.00 and such event in the circumstances occurring reasonably could constitute
grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by
the appropriate United States District Court of a trustee to administer such Guaranteed Pension
Plan; or a trustee shall have been appointed by the United States District Court to administer such
Plan; or the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;




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          (n) the Borrower, any Guarantor or any of their respective Subsidiaries or any Person so
connected with any of them shall be indicted for a federal crime, a punishment for which could
include the forfeiture of (i) any assets of Borrower, any Guarantor or any of their respective
Subsidiaries which in the good faith judgment of the Required Lenders could reasonably be expected
to have a Material Adverse Effect or (ii) the Collateral;




          (o) any Guarantor denies that it has any liability or obligation under the Guaranty or any
other Loan Document, or shall notify the Agent or any of the Lenders of such Guarantor’s intention
to attempt to cancel or terminate the Guaranty or any other Loan Document (or its obligations
thereunder), or shall fail to observe or comply with any term, covenant, condition or agreement
under the Guaranty or any other Loan Document;




          (p) (i) an “event of default” under and as defined in any Contract has occurred that continues
beyond any applicable cure or grace period provided for thereunder and (x) the Borrower has
received notice that the applicable Owner has terminated, or has taken action to terminate, such
Contract(s) and (y) the aggregate amount of the unpaid or remaining contract sum or contract price
under all such Contracts which the applicable Owner has terminated, or has taken action to
terminate, is greater than ten percent (10%) of the aggregate unpaid or remaining contract sum or
contract price with respect to all Contracts as reflected on the WIP Schedule most recently
delivered to Agent pursuant to §7.4(e) or (ii) one or more claims, disputes, defaults or events of
default occur under one or more Contracts, which claims, disputes, defaults or events of default
result in payment to, judgment in favor of, or deduction in any amount owed by the applicable Owner
in an amount in excess of $5,000,000.00 individually or in the aggregate;




          (q) any Change of Control shall occur;




          (r) an Event of Default under any of the other Loan Documents shall occur;




          (s) an “event of Default” under and defined in any of the Senior Revolving Loan Documents
shall occur;



then, and in any such event, the Agent may, and upon the request of the Required Lenders shall, by
notice in writing to the Borrower declare all amounts owing with respect to this Agreement, the
Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately
due and payable without presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Borrower; provided that in the event of any Event of Default
specified in §11.1(g), §11.1(h) or §11.1(i), all such amounts shall become immediately due and
payable automatically and without any requirement of presentment, demand, protest or other notice
of any kind from any of the Lenders or the Agent.




     §11.2 Certain Cure Periods; Limitation of Cure Periods. Notwithstanding anything
contained in §11.1 to the contrary, (a) no Event of Default shall exist hereunder upon the
occurrence of any failure described in §11.1(b) in the event that the Borrower cures such Default
within five (5) Business Days following receipt of written notice of such Default,
provided, however, that Borrower shall not be entitled to receive more than two (2)
notices in the aggregate pursuant to this clause (a) in any period of 365 days ending on the date
of any such occurrence of Default, and provided further that no such cure period
shall apply to any payments due upon the



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maturity of the Notes, and (b) no Event of Default shall exist hereunder upon the occurrence
of any failure described in §11.1(d) in the event that the Borrower cures such Default within
thirty (30) days following receipt of written notice of such default, provided that the
provisions of this clause (b) shall not pertain to defaults consisting of a failure to provide
insurance as required by §7.7, to any default consisting of a failure to comply with §7.4(c), §8.1,
§8.2, §8.3, §8.4, §8.6, §8.7, §8.12, §8.13 or §8.14 or to any Default excluded from any provision
of cure of defaults contained in any other of the Loan Documents.




     §11.3 Termination of Commitments. If any one or more Events of Default specified in
§11.1(g), §11.1(h) or §11.1(i) shall occur, then immediately and without any action on the part of
the Agent or any Lender any unused portion of the credit hereunder shall terminate and the Lenders
shall be relieved of all obligations to make Loans to the Borrower. If any other Event of Default
shall have occurred, the Agent may, and upon the election of the Required Lenders shall, by notice
to the Borrower terminate the obligation to make Loans to the Borrower. No termination under this
§11.3 shall relieve the Borrower of its obligations to the Lenders arising under this Agreement or
the other Loan Documents.



     §11.4 Remedies. In case any one or more Events of Default shall have occurred and be
continuing, and whether or not the Lenders shall have accelerated the maturity of the Loans
pursuant to §11.1, the Agent on behalf of the Lenders may, and with the consent of the Required
Lenders shall, proceed to protect and enforce their rights and remedies under this Agreement, the
Notes and/or any of the other Loan Documents by suit in equity, action at law or other appropriate
proceeding, including to the full extent permitted by applicable law the specific performance of
any covenant or agreement contained in this Agreement and the other Loan Documents, the obtaining
of the ex parte appointment of a receiver, and, if any amount shall have become due, by declaration
or otherwise, the enforcement of the payment thereof. No remedy herein conferred upon the Agent or
the holder of any Note is intended to be exclusive of any other remedy and each and every remedy
shall be cumulative and shall be in addition to every other remedy given hereunder or now or
hereafter existing at law or in equity or by statute or any other provision of law.
Notwithstanding the provisions of this Agreement providing that the Loans may be evidenced by
multiple Notes in favor of the Lenders, the Lenders acknowledge and agree that only the Agent may
exercise any remedies arising by reason of a Default or Event of Default. Following the occurrence
and during the continuance of an Event of Default (except as may otherwise be provided for in any
of the Security Documents), if Borrower or any Guarantor fails to perform any agreement or covenant
contained in this Agreement or any of the other Loan Documents beyond any applicable period for
notice and cure, Agent may itself perform, or cause to be performed, any agreement or covenant of
such Person contained in this Agreement or any of the other Loan Documents which such Person shall
fail to perform, and the out-of-pocket costs of such performance, together with any reasonable
expenses, including reasonable attorneys’ fees actually incurred (including attorneys’ fees
incurred in any appeal) by Agent in connection therewith, shall be payable by Borrower upon demand
and shall constitute a part of the Obligations and shall if not paid within five (5) Business Days
after demand bear interest at the Default Rate. In the event that all or any portion of the
Obligations is collected by or through an attorney-at-law, the Borrower shall pay all costs of
collection including, but not limited to, reasonable attorney’s fees.



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     §11.5 Distribution of Collateral Proceeds. In the event that, following the
occurrence and during the continuance of any Event of Default, any monies are received in
connection with the enforcement of any of the Loan Documents, or otherwise with respect to the
realization upon any of the Collateral or any assets of Borrower or any Guarantor, such monies
shall be distributed for application as follows:



          (a) First, to the payment of, or (as the case may be) the reimbursement of the Agent for or in
respect of, all reasonable out-of-pocket costs, expenses, disbursements and losses which shall have
been paid, incurred or sustained by the Agent to protect or preserve the Collateral or in
connection with the collection of such monies by the Agent, for the exercise, protection or
enforcement by the Agent of all or any of the rights, remedies, powers and privileges of the Agent
or the Lenders under this Agreement or any of the other Loan Documents or in respect of the
Collateral or in support of any provision of adequate indemnity to the Agent against any taxes or
liens which by law shall have, or may have, priority over the rights of the Agent or the Lenders to
such monies;




          (b) Second, to all other Obligations and to the Hedge Obligations (including any interest,
expenses or other obligations incurred after the commencement of a bankruptcy) in such order or
preference as the Required Lenders shall determine; provided, that (i) distributions in
respect of such other Obligations shall include, on a pari passu basis, any Agent’s fee payable
pursuant to §4.2; (ii) in the event that any Lender shall have wrongfully failed or refused to make
an advance under §2.7 and such failure or refusal shall be continuing, advances made by other
Lenders during the pendency of such failure or refusal shall be entitled to be repaid as to
principal and accrued interest in priority to the other Obligations described in this subsection
(b), and (iii) except as otherwise provided in clause (ii), Obligations and Hedge Obligations owing
to the Lenders with respect to each type of Obligation such as interest, principal, fees and
expenses shall be made among the Lenders pro rata; and provided, further that the
Required Lenders may in their discretion make proper allowance to take into account any Obligations
not then due and payable; and




          (c) Third, the excess, if any, shall be returned to the Borrower or to such other Persons as
are entitled thereto.




§12. SETOFF.




     Regardless of the adequacy of any Collateral, during the continuance of any Event of Default,
any deposits (general or specific, time or demand, provisional or final, regardless of currency,
maturity, or the branch where such deposits are held) or other sums credited by or due from any
Lender to the Borrower or the Guarantors and any securities or other property of the Borrower or
the Guarantors in the possession of such Lender may, without notice to Borrower or any Guarantor
(any such notice being expressly waived by Borrower and Parent) but with the prior written approval
of Agent, be applied to or set off against the payment of Obligations and any and all other
liabilities, direct, or indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, of the Borrower or the Guarantors to such Lender. Each of the Lenders agrees
with each other Lender that if such Lender shall receive from the Borrower or the Guarantors,
whether by voluntary payment, exercise of the right of setoff, or otherwise, and shall retain and
apply to the payment of the Note or Notes held by such Lender any amount in excess



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of its ratable portion of the payments received by all of the Lenders with respect to the
Notes held by all of the Lenders, such Lender will make such disposition and arrangements with the
other Lenders with respect to such excess, either by way of distribution, pro tanto
assignment of claims, subrogation or otherwise as shall result in each Lender receiving in respect
of the Notes held by it its proportionate payment as contemplated by this Agreement;
provided that if all or any part of such excess payment is thereafter recovered from such
Lender, such disposition and arrangements shall be rescinded and the amount restored to the extent
of such recovery, but without interest.




§13. THE AGENT.




     §13.1 Authorization. The Agent is authorized to take such action on behalf of each of
the Lenders and to exercise all such powers as are hereunder and under any of the other Loan
Documents and any related documents delegated to the Agent (including entering into the
Intercreditor Agreement), together with such powers as are reasonably incident thereto, provided
that no duties or responsibilities not expressly assumed herein or therein shall be implied to have
been assumed by the Agent. The obligations of the Agent hereunder are primarily administrative in
nature, and nothing contained in this Agreement or any of the other Loan Documents shall be
construed to constitute the Agent as a trustee for any Lender or to create an agency or fiduciary
relationship. Agent shall act as the contractual representative of the Lenders hereunder, and
notwithstanding the use of the term “Agent”, it is understood and agreed that Agent shall not have
any fiduciary duties or responsibilities to any Lender by reason of this Agreement or any other
Loan Document and is acting as an independent contractor, the duties and responsibilities of which
are limited to those expressly set forth in this Agreement and the other Loan Documents. The
Borrower and any other Person shall be entitled to conclusively rely on a statement from the Agent
that it has the authority to act for and bind the Lenders pursuant to this Agreement and the other
Loan Documents.



     §13.2 Employees and Agents. The Agent may exercise its powers and execute its duties
by or through employees or agents and shall be entitled to take, and to rely on, advice of counsel
concerning all matters pertaining to its rights and duties under this Agreement and the other Loan
Documents. The Agent may utilize the services of such Persons as the Agent may reasonably
determine, and all reasonable fees and expenses of any such Persons shall be paid by the Borrower.



     §13.3 No Liability. Neither the Agent nor any of its shareholders, directors,
officers or employees nor any other Person assisting them in their duties nor any agent, or
employee thereof, shall be liable for (a) any waiver, consent or approval given or any action
taken, or omitted to be taken, in good faith by it or them hereunder or under any of the other Loan
Documents, or in connection herewith or therewith, or be responsible for the consequences of any
oversight or error of judgment whatsoever, except that the Agent or such other Person, as the case
may be, shall be liable for losses due to its willful misconduct or gross negligence as finally
determined by a court of competent jurisdiction after the expiration of all applicable appeal
periods or (b) any action taken or not taken by Agent with the consent or at the request of the
Required Lenders. The Agent shall not be deemed to have knowledge or notice of the occurrence of
any Default or Event of Default, except with respect to defaults in the payment of principal,
interest and fees required to be paid to the Agent for the account of the Lenders, unless



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the Agent has received notice from a Lender or the Borrower referring to the Loan Documents
and describing with reasonable specificity such Default or Event of Default and stating that such
notice is a “notice of default”.




     §13.4 No Representations. The Agent shall not be responsible for the execution or
validity or enforceability of this Agreement, the Notes, any of the other Loan Documents or any
instrument at any time constituting, or intended to constitute, collateral security for the Notes,
or for the value of any such collateral security or for the validity, enforceability or
collectability of any such amounts owing with respect to the Notes, or for any recitals or
statements, warranties or representations made herein, or any agreement, instrument or certificate
delivered in connection therewith or in any of the other Loan Documents or in any certificate or
instrument hereafter furnished to it by or on behalf of the Borrower, any Guarantor or any of their
respective Subsidiaries, or be bound to ascertain or inquire as to the performance or observance of
any of the terms, conditions, covenants or agreements herein or in any of the other Loan Documents.
The Agent shall not be bound to ascertain whether any notice, consent, waiver or request delivered
to it by the Borrower, any Guarantor or any holder of any of the Notes shall have been duly
authorized or is true, accurate and complete. The Agent has not made nor does it now make any
representations or warranties, express or implied, nor does it assume any liability to the Lenders,
with respect to the creditworthiness or financial condition of the Borrower, any Guarantor, or any
of their respective Subsidiaries, or the value of the Collateral or any other assets of the
Borrower or any Guarantor or any of their respective Subsidiaries. Each Lender acknowledges that
it has, independently and without reliance upon the Agent or any other Lender, and based upon such
information and documents as it has deemed appropriate, made its own credit analysis and decision
to enter into this Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon the Agent or any other Lender, based upon such information and documents as
it deems appropriate at the time, continue to make its own credit analysis and decisions in taking
or not taking action under this Agreement and the other Loan Documents. Agent’s Special Counsel
has only represented Agent and KeyBank in connection with the Loan Documents and the only attorney
client relationship or duty of care is between Agent’s Special Counsel and Agent or KeyBank. Each
Lender has been independently represented by separate counsel on all matters regarding the Loan
Documents and the granting and perfecting of liens in the Collateral.



     §13.5 Payments.



          (a) A payment by the Borrower or any Guarantor to the Agent hereunder or under any of the
other Loan Documents for the account of any Lender shall constitute a payment to such Lender. The
Agent agrees to distribute to each Lender not later than one Business Day after the Agent’s receipt
of good funds, determined in accordance with the Agent’s customary practices, such Lender’s pro
rata share of payments received by the Agent for the account of the Lenders except as otherwise
expressly provided herein or in any of the other Loan Documents. In the event that the Agent fails
to distribute such amounts within one Business Day as provided above, the Agent shall pay interest
on such amount at a rate per annum equal to the Federal Funds Effective Rate from time to time in
effect.




          (b) If in the opinion of the Agent the distribution of any amount received by it in such
capacity hereunder, under the Notes or under any of the other Loan Documents might




62









 







involve it in liability, it may refrain from making such distribution until its right to make
such distribution shall have been adjudicated by a court of competent jurisdiction. If a court of
competent jurisdiction shall adjudge that any amount received and distributed by the Agent is to be
repaid, each Person to whom any such distribution shall have been made shall either repay to the
Agent its proportionate share of the amount so adjudged to be repaid or shall pay over the same in
such manner and to such Persons as shall be determined by such court.




          (c) Notwithstanding anything to the contrary contained in this Agreement or any of the other
Loan Documents, any Lender that fails (i) to make available to the Agent its pro rata share of any
Loan, (ii) to comply with the provisions of §12 with respect to making dispositions and
arrangements with the other Lenders, where such Lender’s share of any payment received, whether by
setoff or otherwise, is in excess of its pro rata share of such payments due and payable to all of
the Lenders, in each case as, when and to the full extent required by the provisions of this
Agreement, or (iii) to perform any other obligation within the time period specified for
performance, or if no time period is specified, if such failure continues for a period of five (5)
Business Days after notice from the Agent shall be deemed delinquent (a “Delinquent Lender”) and
shall be deemed a Delinquent Lender until such time as such delinquency is satisfied. In addition
to the rights and remedies that may be available to the Agent at law and in equity, a Delinquent
Lender’s right to participate in the administration of the Loan Documents, including, without
limitation, any rights to consent to or direct any action or inaction of the Agent pursuant to this
Agreement or otherwise, or to be taken into account in the calculation of Required Lenders or any
matter requiring approval of all of the Lenders, shall be suspended while such Lender is a
Delinquent Lender. A Delinquent Lender shall be deemed to have assigned any and all payments due
to it from the Borrower or the Guarantors, whether on account of outstanding Loans, interest, fees
or otherwise, to the remaining nondelinquent Lenders for application to, and reduction of, their
respective pro rata shares of all outstanding Loans. The Delinquent Lender hereby authorizes the
Agent to distribute such payments to the nondelinquent Lenders in proportion to their respective
pro rata shares of all outstanding Loans. The provisions of this Section shall apply and be
effective regardless of whether an Event of Default occurs and is then continuing, and
notwithstanding (i) any other provision of this Agreement to the contrary or (ii) any instruction
of Borrower as to its desired application of payments. The Agent shall be entitled to (i) withhold
or set off, and to apply to the payment of the obligations of any Delinquent Lender any amounts to
be paid to such Delinquent Lender under this Agreement, (ii) to collect interest from such Lender
for the period from the date on which the payment was due at the rate per annum equal to the
Federal Funds Effective Rate plus one percent (1%), for each day during such period, and (iii)
bring an action or suit against such Delinquent Lender in a court of competent jurisdiction to
recover the defaulted obligations of such Delinquent Lender. A Delinquent Lender shall be deemed
to have satisfied in full a delinquency when and if, as a result of application of the assigned
payments to all outstanding Loans of the nondelinquent Lenders or as a result of other payments by
the Delinquent Lenders to the nondelinquent Lenders, the Lenders’ respective pro rata shares of all
outstanding Loans have returned to those in effect immediately prior to such delinquency and
without giving effect to the nonpayment causing such delinquency.




     §13.6 Holders of Notes. Subject to the terms of §17, the Agent may deem and treat the
payee of any Note as the absolute owner or purchaser thereof for all purposes hereof until it shall



63









 




have been furnished in writing with a different name by such payee or by a subsequent holder,
assignee or transferee.




     §13.7 Indemnity. The Lenders ratably agree hereby to indemnify and hold harmless the
Agent from and against any and all claims, actions and suits (whether groundless or otherwise),
losses, damages, costs, expenses (including any expenses for which the Agent has not been
reimbursed by the Borrower as required by §14), and liabilities of every nature and character
arising out of or related to this Agreement, the Notes, or any of the other Loan Documents or the
transactions contemplated or evidenced hereby or thereby, or the Agent’s actions taken hereunder or
thereunder, except to the extent that any of the same shall be directly caused by the Agent’s
willful misconduct or gross negligence as finally determined by a court of competent jurisdiction
after the expiration of all applicable appeal periods. The agreements in this §13.7 shall survive
the payment of all amounts payable under the Loan Documents.



     §13.8 Agent as Lender. In its individual capacity, KeyBank shall have the same
obligations and the same rights, powers and privileges in respect to its Commitment and the Loans
made by it, and as the holder of any of the Notes as it would have were it not also the Agent.



     §13.9 Resignation. The Agent may resign at any time by giving thirty (30) calendar
days’ prior written notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders, subject to the terms of §17.1, shall have the right to appoint as a successor
Agent any Lender or any bank whose senior debt obligations are rated not less than “A” or its
equivalent by Moody’s or not less than “A” or its equivalent by S&P and which has a net worth of
not less than $500,000,000.00. Unless a Default or Event of Default shall have occurred and be
continuing, such successor Agent shall be reasonably acceptable to the Borrower. If no successor
Agent shall have been appointed and shall have accepted such appointment within thirty (30) days
after the retiring Agent’s giving of notice of resignation, then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent, which shall be any Lender or any bank whose senior debt
obligations are rated not less than “A2” or its equivalent by Moody’s or not less than “A” or its
equivalent by S&P and which has a net worth of not less than $500,000,000.00. Upon the acceptance
of any appointment as Agent hereunder by a successor Agent such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties of the retiring
Agent and the retiring Agent shall be discharged from its duties and obligations hereunder as
Agent. After any retiring Agent’s resignation, the provisions of this Agreement and the other Loan
Documents shall continue in effect for its benefit in respect of any actions taken or omitted to be
taken by it while it was acting as Agent. Upon any change in the Agent under this Agreement, the
resigning Agent shall execute such assignments of and amendments to the Loan Documents as may be
necessary to substitute the successor Agent for the resigning Agent.



     §13.10 Duties in the Case of Enforcement. In case one or more Events of Default have
occurred and shall be continuing, and whether or not acceleration of the Obligations shall have
occurred, the Agent may and, if (a) so requested by the Required Lenders and (b) the Lenders have
provided to the Agent such additional indemnities and assurances in accordance with their
respective Commitment Percentages against expenses and liabilities as the Agent may reasonably
request, shall proceed to exercise all or any legal and equitable and other rights or



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remedies as it may have; provided, however, that unless and until the Agent
shall have received such directions, the Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or Event of Default as it
shall deem to be in the best interests of the Lenders. The Required Lenders may direct the Agent
in writing as to the method and the extent of any such exercise, the Lenders hereby agreeing to
indemnify and hold the Agent harmless in accordance with their respective Commitment Percentages
from all liabilities incurred in respect of all actions taken or omitted in accordance with such
directions, provided that the Agent need not comply with any such direction to the extent
that the Agent reasonably believes the Agent’s compliance with such direction to be unlawful in any
applicable jurisdiction or commercially unreasonable in any applicable jurisdiction.




     §13.11 Reliance on Hedge Provider. For purposes of applying payments received in
accordance with §11.5, the Agent shall be entitled to rely upon the trustee, paying agent or other
similar representative (each, a “Representative”) or, in the absence of such a Representative, upon
the holder of the Hedge Obligations for a determination (which each holder of the Hedge Obligations
agrees (or shall agree) to provide upon request of the Agent) of the outstanding Hedge Obligations
owed to the holder thereof. Unless it has actual knowledge (including by way of written notice
from such holder) to the contrary, the Agent, in acting hereunder, shall be entitled to assume that
no Hedge Obligations are outstanding.



     §13.12 Bankruptcy. In the event a bankruptcy or other insolvency proceeding is
commenced by or against Borrower or any Guarantor with respect to the Obligations, the Agent shall
have the sole and exclusive right to file and pursue a joint proof claim on behalf of all Lenders.
Any votes with respect to such claims or otherwise with respect to such proceedings shall be
subject to the vote of the Required Lenders or all of the Lenders as required by this Agreement.
Each Lender irrevocably waives its right to file or pursue a separate proof of claim in any such
proceedings unless Agent fails to file such claim within thirty (30) days after receipt of written
notice from the Lenders requesting that Agent file such proof of claim.



     §13.13 Reliance by Agent. The Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent, statement,
instrument, document or other writing (including any electronic message, Internet or intranet
website posting or other distribution) believed by it to be genuine and to have been signed, sent
or otherwise authenticated by an Authorized Officer. The Agent also may rely upon any statement
made to it orally or by telephone and believed by it to have been made by the proper Person, and
shall not incur any liability for relying thereon. In determining compliance with any condition
hereunder to the making of a Loan, that by its terms must be fulfilled to the satisfaction of a
Lender, the Agent may presume that such condition is satisfactory to such Lender unless the Agent
shall have received notice to the contrary from such Lender prior to the making of such Loan. The
Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants
and other experts selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.



     §13.14 Approvals. If consent is required for some action under this Agreement, or
except as otherwise provided herein an approval of the Lenders or the Required Lenders is required
or permitted under this Agreement, each Lender agrees to give the Agent, within ten (10) days of
receipt of the request for action together with all reasonably requested information related
thereto



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(or such lesser period of time required by the terms of the Loan Documents), notice in writing
of approval or disapproval (collectively “Directions”) in respect of any action requested or
proposed in writing pursuant to the terms hereof. To the extent that any Lender does not approve
any recommendation of Agent, such Lender shall in such notice to Agent describe the actions that
would be acceptable to such Lender. If consent is required for the requested action, any Lender’s
failure to respond to a request for Directions within the required time period shall be deemed to
constitute a Direction to take such requested action. In the event that any recommendation is not
approved by the requisite number of Lenders and a subsequent approval on the same subject matter is
requested by Agent, then for the purposes of this paragraph each Lender shall be required to
respond to a request for Directions within five (5) Business Days of receipt of such request.
Agent and each Lender shall be entitled to assume that any officer of the other Lenders delivering
any notice, consent, certificate or other writing is authorized to give such notice, consent,
certificate or other writing unless Agent and such other Lenders have otherwise been notified in
writing.




     §13.15 Borrower Not Beneficiary. Except for the provisions of §13.9 relating to the
appointment of a successor Agent, the provisions of this §13 are solely for the benefit of the
Agent and the Lenders, may not be enforced by the Borrower or any Guarantor, and except for the
provisions of §13.9, may be modified or waived without the approval or consent of the Borrower or
Guarantors.



     §13.16 Intercreditor Agreement. Borrower and the Lenders acknowledge that Agent has
entered into the Intercreditor Agreement. Borrower acknowledges that the existence of the
Intercreditor Agreement and the performance by Agent and the Lenders of their obligations under the
Intercreditor Agreement shall not affect, impair or release the obligations of Borrower or
Guarantors under the Loan Documents. The Intercreditor Agreement is solely for the benefit of
Agent and the Lenders and not for the benefit of Borrower or Guarantors, and Borrower and
Guarantors shall have no rights thereunder or any right to insist on the performance thereof.
Agent is authorized by Lenders to perform its obligations under the Intercreditor Agreement, and
each Lender agrees to be bound thereby.



§14. EXPENSES.




     The Borrower agrees to pay (a) the reasonable costs of producing and reproducing this
Agreement, the other Loan Documents and the other agreements and instruments mentioned herein, (b)
any taxes (including any interest and penalties in respect thereto) payable by the Agent or any of
the Lenders (other than taxes based upon the Agent’s or any Lender’s gross or net income, except
that the Agent and the Lenders shall be entitled to indemnification for any and all amounts paid by
them in respect of taxes based on income or other taxes assessed by any State in which Collateral
is located, such indemnification to be limited to taxes due solely on account of the granting of
Collateral under the Security Documents and to be net of any credit allowed to the indemnified
party from any other State on account of the payment or incurrence of such tax by such indemnified
party), including any recording, mortgage, documentary or intangibles taxes in connection with the
Loan Documents, or other taxes payable on or with respect to the transactions contemplated by this
Agreement, including any such taxes payable by the Agent or any of the Lenders after the Closing
Date (the Borrower hereby agreeing to indemnify the Agent and each Lender with respect thereto),
(c) the reasonable fees, expenses and



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disbursements of the counsel to the Agent incurred in connection with the preparation,
administration, or interpretation of the Loan Documents and other instruments mentioned herein, and
amendments, modifications, approvals, consents or waivers hereto or hereunder, (d) the
out-of-pocket fees, costs, expenses and disbursements of Agent incurred in connection with the
syndication and/or participation of the Loans, (e) all other reasonable out of pocket fees,
expenses and disbursements of the Agent incurred by the Agent in connection with the preparation or
interpretation of the Loan Documents and other instruments mentioned herein, the addition or
substitution of additional Collateral, the making of the advance hereunder, and the syndication of
the Commitments pursuant to §17 (without duplication of those items addressed in subparagraph (d),
above), (f) all out-of-pocket expenses (including attorneys’ fees and costs, and the fees and costs
of appraisers, engineers, investment bankers or other experts retained by any Lender or the Agent)
incurred by any Lender or the Agent in connection with (i) the enforcement of or preservation of
rights under any of the Loan Documents against the Borrower or the Guarantors or the administration
thereof after the occurrence of a Default or Event of Default and (ii) any litigation, proceeding
or dispute whether arising hereunder or otherwise, in any way related to the Agent’s or any of the
Lenders’ relationship with the Borrower or the Guarantors, (g) all reasonable fees, expenses and
disbursements of the Agent incurred in connection with UCC searches, UCC filings, title rundowns,
title searches or mortgage recordings, (h) all reasonable out-of-pocket fees, expenses and
disbursements (including reasonable attorneys’ fees and costs) which may be incurred by KeyBank in
connection with the execution and delivery of this Agreement and the other Loan Documents (without
duplication of any of the items listed above), and (i) all expenses relating to the use of
Intralinks, SyndTrak or any other similar system for the dissemination and sharing of documents and
information in connection with the Loans. The covenants of this §14 shall survive the repayment of
the Loans and the termination of the obligations of the Lenders hereunder for two (2) years
following repayment of the Loans and termination of the obligations of the Lenders to lend
hereunder.




§15. INDEMNIFICATION.




     The Borrower and Parent, jointly and severally, agree to indemnify and hold harmless the
Agent, the Lenders and the Arranger and each director, officer, employee, agent and Person who
controls the Agent or any Lender or the Arranger against any and all claims, actions and suits,
whether groundless or otherwise, and from and against any and all liabilities, losses, damages and
expenses of every nature and character arising out of or relating to this Agreement or any of the
other Loan Documents or the transactions contemplated hereby and thereby or the Acquisition and
Merger including, without limitation, (a) any and all claims for brokerage, leasing, finders or
similar fees which may be made relating to the Loans, (b) any actual or proposed use by the
Borrower of the proceeds of any of the Loans, (c) any actual or alleged infringement of any patent,
copyright, trademark, service mark or similar right of the Borrower, any Guarantor, or any of their
respective Subsidiaries, (d) the Borrower and the Guarantors entering into or performing this
Agreement or any of the other Loan Documents, (e) any actual or alleged violation of any law,
ordinance, code, order, rule, regulation, approval, consent, permit or license relating to business
of, or applicable to, the Borrower, any Guarantor or any of their respective Subsidiaries, (f) with
respect to the Borrower, the Guarantors and their respective Subsidiaries and their respective
properties and assets, the violation of any Environmental Law, the Release or threatened Release of
any Hazardous Substances or any action, suit, proceeding or investigation brought or threatened
with respect to any Hazardous Substances (including, but not



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limited to, claims with respect to wrongful death, personal injury, nuisance or damage to
property), (g) any use of Intralinks, SyndTrak or any other system for the dissemination and
sharing of documents and information, and (h) shareholder or other lawsuit, or claims threatened or
filed or investigations undertaken, as a result of the consummation of the Acquisition, in each
case including, without limitation, the reasonable fees and disbursements of counsel incurred in
connection with any such investigation, litigation or other proceeding; provided,
however, that the Borrower shall not be obligated under this §15 to indemnify any Person
for liabilities arising from such Person’s own gross negligence or willful misconduct as determined
by a court of competent jurisdiction after the exhaustion of all applicable appeal periods. In
litigation, or the preparation therefor, the Lenders and the Agent shall be entitled to select a
single law firm as their own counsel and, in addition to the foregoing indemnity, the Borrower
agrees to pay promptly the reasonable fees and expenses of such counsel. If, and to the extent
that the obligations of the Borrower under this §15 are unenforceable for any reason, the Borrower
hereby agrees to make the maximum contribution to the payment in satisfaction of such obligations
which is permissible under applicable law. The provisions of this §15 shall survive the repayment
of the Loans and the termination of the obligations of the Lenders hereunder.




§16. SURVIVAL OF COVENANTS, ETC.




     All covenants, agreements, representations and warranties made herein, in the Notes, in any of
the other Loan Documents or in any documents or other papers delivered by or on behalf of the
Borrower or the Guarantors or any of their respective Subsidiaries pursuant hereto or thereto shall
be deemed to have been relied upon by the Lenders and the Agent, notwithstanding any investigation
heretofore or hereafter made by any of them, and shall survive the making by the Lenders of any of
the Loans, as herein contemplated, and shall continue in full force and effect so long as any
amount due under this Agreement or the Notes or any of the other Loan Documents remains outstanding
or any Lender has any obligation to make any Loans. The indemnification obligations of the
Borrower provided herein and in the other Loan Documents shall survive the full repayment of
amounts due and the termination of the obligations of the Lenders hereunder and thereunder to the
extent provided herein and therein. All statements contained in any certificate delivered to any
Lender or the Agent at any time by or on behalf of the Borrower or the Guarantors or any of their
respective Subsidiaries pursuant hereto or in connection with the transactions contemplated hereby
shall constitute representations and warranties by such Person hereunder.



§17. ASSIGNMENT AND PARTICIPATION.




     §17.1 Conditions to Assignment by Lenders. Except as provided herein, each Lender may
assign to one or more banks or other entities all or a portion of its interests, rights and
obligations under this Agreement (including all or a portion of its Commitment Percentage and
Commitment and the same portion of the Loans at the time owing to it and the Notes held by it);
provided that (a) the Agent and, so long as no Default or Event of Default exists
hereunder, the Borrower shall have each given its prior written consent to such assignment, which
consent shall not be unreasonably withheld or delayed (provided that such consent shall not be
required for any assignment to another Lender or to an Affiliate of the assigning Lender, provided
that such assignee shall remain a wholly-owned Subsidiary of such Lender), (b) each such assignment
shall be of a constant, and not a varying, percentage of all the assigning Lender’s rights and



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obligations under this Agreement, (c) the parties to such assignment shall execute and deliver
to the Agent, for recording in the Register (as hereinafter defined) an Assignment and Acceptance
Agreement in the form of Exhibit D annexed hereto, together with any Notes subject to such
assignment, (d) in no event shall any assignment be to any Person controlling, controlled by or
under common control with, or which is not otherwise free from influence or control by, the
Borrower or any Guarantor, (e) such assignee shall acquire an interest in the Loans of not less
than $5,000,000.00 and integral multiples of $1,000,000.00 in excess thereof (or if less, the
remaining Loans of the assignor), unless waived by the Agent, and so long as no Default or Event of
Default exists hereunder, the Borrower, (f) if such assignment is less than the assigning Lender’s
entire interest in the Loans, the assigning Lender shall retain an interest in the Loans of not
less than $5,000,000.00, and (g) such assignee shall be subject to the terms of any intercreditor
agreement among the Lenders and the Agent. Upon execution, delivery, acceptance and recording of
such Assignment and Acceptance Agreement, (i) the assignee thereunder shall be a party hereto and
all other Loan Documents executed by the Lenders and, to the extent provided in such Assignment and
Acceptance Agreement, have the rights and obligations of a Lender hereunder, (ii) the assigning
Lender shall, upon payment to the Agent of the registration fee referred to in §17.2, be released
from its obligations under this Agreement arising after the effective date of such assignment with
respect to the assigned portion of its interests, rights and obligations under this Agreement, and
(iii) the Agent may unilaterally amend Schedule 1 to reflect such assignment. In
connection with each assignment, the assignee shall represent and warrant to the Agent, the
assignor and each other Lender as to whether such assignee is controlling, controlled by, under
common control with or is not otherwise free from influence or control by, the Borrower or any
Guarantor.




     §17.2 Register. The Agent shall maintain on behalf of the Borrower a copy of each
assignment delivered to it and a register or similar list (the “Register”) for the recordation of
the names and addresses of the Lenders and the Commitment Percentages of and principal amount of
the Loans owing to the Lenders from time to time. The entries in the Register shall be conclusive,
in the absence of manifest error, and the Borrower, the Guarantors, the Agent and the Lenders may
treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the Borrower and the Lenders at
any reasonable time and from time to time upon reasonable prior notice. Upon each such
recordation, the assigning Lender agrees to pay to the Agent a registration fee in the sum of
$3,500.00.



     §17.3 New Notes. Upon its receipt of an Assignment and Acceptance Agreement executed
by the parties to such assignment, together with each Note subject to such assignment, the Agent
shall record the information contained therein in the Register. Within five (5) Business Days
after receipt of notice of such assignment from Agent, the Borrower, at its own expense, shall
execute and deliver to the Agent, in exchange for each surrendered Note, a new Note to the order of
such assignee in an amount equal to the amount assigned to such assignee pursuant to such
Assignment and Acceptance Agreement and, if the assigning Lender has retained some portion of its
obligations hereunder, a new Note to the order of the assigning Lender in an amount equal to the
amount retained by it hereunder. Such new Notes shall provide that they are replacements for the
surrendered Notes, shall be in an aggregate principal amount equal to the aggregate principal
amount of the surrendered Notes, shall be dated the effective date of such Assignment and
Acceptance Agreement and shall otherwise be in substantially the



69









 




form of the assigned Notes. The surrendered Notes shall be canceled and returned to the
Borrower.




     §17.4 Participations. Each Lender may sell participations to one or more Lenders or
other entities in all or a portion of such Lender’s rights and obligations under this Agreement and
the other Loan Documents; provided that (a) any such sale or participation shall not affect
the rights and duties of the selling Lender hereunder, (b) such participation shall not entitle
such participant to any rights or privileges under this Agreement or any Loan Documents, including
without limitation, rights granted to the Lenders under §4.7, §4.8 and §4.9, (c) such participation
shall not entitle the participant to the right to approve waivers, amendments or modifications, (d)
such participant shall have no direct rights against the Borrower, (e) such sale is effected in
accordance with all applicable laws, and (f) such participant shall not be a Person controlling,
controlled by or under common control with, or which is not otherwise free from influence or
control by any of the Borrower or any Guarantor; provided, however, such Lender may
agree with the participant that it will not, without the consent of the participant, agree to (i)
increase, or extend the term or extend the time or waive any requirement for the reduction or
termination of, such Lender’s Commitment, (ii) extend the date fixed for the payment of principal
of or interest on the Loans or portions thereof owing to such Lender (other than pursuant to an
extension of the Maturity Date pursuant to §2.5), (iii) reduce the amount of any such payment of
principal, (iv) reduce the rate at which interest is payable thereon or (v) release any Guarantor
(except as otherwise permitted under this Agreement). Any Lender which sells a participation shall
promptly notify the Agent of such sale and the identity of the purchaser of such interest.



     §17.5 Pledge by Lender. Any Lender may at any time pledge all or any portion of its
interest and rights under this Agreement (including all or any portion of its Note) to any of the
twelve Federal Reserve Banks organized under §4 of the Federal Reserve Act, 12 U.S.C. §341 or to
such other Person as the Agent may approve to secure obligations of such lenders. No such pledge
or the enforcement thereof shall release the pledgor Lender from its obligations hereunder or under
any of the other Loan Documents.



     §17.6 No Assignment by Borrower. The Borrower shall not assign or transfer any of its
rights or obligations under this Agreement without the prior written consent of each of the
Lenders.



     §17.7 Disclosure. Borrower agrees to promptly cooperate with any Lender in connection
with any proposed assignment or participation of all or any portion of its interest in the Loans.
The Borrower agrees that in addition to disclosures made in accordance with standard banking
practices any Lender may disclose information obtained by such Lender pursuant to this Agreement to
assignees or participants and potential assignees or participants hereunder provided such Persons
are advised of the provisions of this §17.7. Each Lender agrees for itself that it shall use
reasonable efforts in accordance with its customary procedures to hold confidential all non-public
information obtained from Parent or Borrower that has been identified verbally or in writing as
confidential by any of them, and shall use reasonable efforts in accordance with its customary
procedures to not disclose such information to any other Person, it being understood and agreed
that, notwithstanding the foregoing, a Lender may make (a) disclosures to its participants
(provided such Persons are advised of the provisions of this §17.7), (b) disclosures to its
directors, officers, employees, Affiliates, accountants, appraisers,



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legal counsel and other professional advisors of such Lender (provided that such Persons who are not
employees of such Lender are advised of the provision of this §17.7), (c) disclosures customarily
provided or reasonably required by any potential or actual bona fide assignee, transferee or
participant or their respective directors, officers, employees, Affiliates, accountants,
appraisers, legal counsel and other professional advisors in connection with a potential or actual
assignment or transfer by such Lender of any Loans or any participations therein (provided such
Persons are advised of the provisions of this §17.7), (d) disclosures to bank regulatory
authorities or self-regulatory bodies with jurisdiction over such Lender, or (e) disclosures
required or requested by any other governmental authority or representative thereof or pursuant to
legal process; provided that, unless specifically prohibited by applicable law or court order, each
Lender shall notify Borrower of any request by any governmental authority or representative thereof
prior to disclosure (other than any such request in connection with any examination of such Lender
by such government authority) for disclosure of any such non-public information prior to disclosure
of such information. Non-public information shall not include any information which is or
subsequently becomes publicly available other than as a result of a disclosure of such information
by a Lender, or prior to the delivery to such Lender is within the possession of such Lender if
such information is not known by such Lender to be subject to another confidentiality agreement
with or other obligations of secrecy to Parent or the Borrower, or is disclosed with the prior
approval of Borrower. Nothing herein shall prohibit the disclosure of non-public information to
the extent necessary to enforce the Loan Documents.




     §17.8 Amendments to Loan Documents. Upon any such assignment or participation, the
Borrower and the Guarantors shall, upon the request of the Agent, enter into such documents as may
be reasonably required by the Agent to modify the Loan Documents to reflect such assignment or
participation.



     §17.9 Titled Agents. The Titled Agents shall not have any additional rights or
obligations under the Loan Documents, except for those rights, if any, as a Lender.



§18. NOTICES.




     Each notice, demand, election or request provided for or permitted to be given pursuant to
this Agreement (hereinafter in this §18 referred to as “Notice”), but specifically excluding to the
maximum extent permitted by law any notices of the institution or commencement of foreclosure
proceedings, must be in writing and shall be deemed to have been properly given or served by
personal delivery or by sending same by overnight courier or by depositing same in the United
States Mail, postpaid and registered or certified, return receipt requested, or as expressly
permitted herein, by telegraph, telecopy, telefax or telex, and addressed as follows:



If to the Agent or KeyBank:




KeyBank National Association

127 Public Square

Cleveland, Ohio 44114-1306

Attn: Real Estate Capital Services




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With a copy to:




KeyBank National Association

1200 Abernathy Road, NE, Suite 1550

Atlanta, Georgia 30328

Attn: Daniel Stegemoeller

Telecopy No.: (770) 510-2195




and




McKenna Long & Aldridge LLP

Suite 5300

303 Peachtree Street, N.E.

Atlanta, Georgia 30308

Attn: William F. Timmons, Esq.

Telecopy No.: (404) 527-4198




If to the Borrower:




Goldenboy Acquisition Corp.

c/o Cogdell Spencer, Inc.

4401 Barclay Downs Drive

Suite 380

Charlotte, North Carolina 28209

Attn: Frank Spencer

Telecopy No.: (704) 940-2957




With a copy to:




Marshall Erdman & Associates, Inc.

P.O. Box 44975

Madison, Wisconsin 53744

Attn: Brian Happ

Telecopy No.: (608)218-6575



to any other Lender which is a party hereto, at the address for such Lender set forth on its
signature page hereto, and to any Lender which may hereafter become a party to this Agreement, at
such address as may be designated by such Lender. Each Notice shall be effective upon being
personally delivered or upon being sent by overnight courier or upon being deposited in the United
States Mail as aforesaid, or if transmitted by telegraph, telecopy, telefax or telex is permitted,
upon being sent and confirmation of receipt. The time period in which a response to such Notice
must be given or any action taken with respect thereto (if any), however, shall commence to run
from the date of receipt if personally delivered or sent by overnight courier, or if so deposited
in the United States Mail, the earlier of three (3) Business Days following such deposit or the
date of receipt as disclosed on the return receipt. Rejection or other refusal to accept or the
inability to deliver because of changed address for which no notice was given shall be deemed to be
receipt of the Notice sent. By giving at least fifteen (15) days prior Notice




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thereof, the Borrower, a Lender or Agent shall have the right from time to time and at any time
during the term of this Agreement to change their respective addresses and each shall have the
right to specify as its address any other address within the United States of America.




§19. RELATIONSHIP.




     Neither the Agent nor any Lender has any fiduciary relationship with or fiduciary duty to the
Borrower, the Guarantors or their respective Subsidiaries arising out of or in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereunder and thereunder,
and the relationship between each Lender and Agent, and the Borrower is solely that of a lender and
borrower, and nothing contained herein or in any of the other Loan Documents shall in any manner be
construed as making the parties hereto partners, joint venturers or any other relationship other
than lender and borrower.



§20. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE.




     THIS AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED
HEREIN OR THEREIN, SHALL, PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1401, BE GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK. THE BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF
THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN ANY COURT OF COMPETENT
JURISDICTION IN THE STATE OF NEW YORK (INCLUDING ANY FEDERAL COURT SITTING THEREIN). THE BORROWER
FURTHER ACCEPTS, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF SUCH COURTS AND
ANY RELATED APPELLATE COURT AND IRREVOCABLY (i) AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY
WITH RESPECT TO THIS AGREEMENT AND ANY OF THE OTHER LOAN DOCUMENTS AND (ii) WAIVES ANY OBJECTION IT
MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT OR THAT
SUCH A COURT IS AN INCONVENIENT FORUM. THE BORROWER FURTHER AGREES THAT SERVICE OF PROCESS IN ANY
SUCH SUIT MAY BE MADE UPON THE BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN §18 HEREOF. IN
ADDITION TO THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN, THE AGENT OR
ANY LENDER MAY BRING ACTION(S) FOR ENFORCEMENT ON A NONEXCLUSIVE BASIS WHERE ANY COLLATERAL OR
ASSETS OF BORROWER OR ANY GUARANTOR EXIST AND THE BORROWER CONSENTS TO THE NONEXCLUSIVE
JURISDICTION OF SUCH COURTS AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE
BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN §18 HEREOF.



§21. HEADINGS.




     The captions in this Agreement are for convenience of reference only and shall not define or
limit the provisions hereof.



73









 





§22. COUNTERPARTS.




     This Agreement and any amendment hereof may be executed in several counterparts and by each
party on a separate counterpart, each of which when so executed and delivered shall be an original,
and all of which together shall constitute one instrument. In proving this Agreement it shall not
be necessary to produce or account for more than one such counterpart signed by the party against
whom enforcement is sought.



§23. ENTIRE AGREEMENT, ETC.




     This Agreement and the Loan Documents is intended by the parties as the final, complete and
exclusive statement of the transactions evidenced by this Agreement and the Loan Documents. All
prior or contemporaneous promises, agreements and understandings, whether oral or written, are
deemed to be superseded by this Agreement and the Loan Documents, and no party is relying on any
promise, agreement or understanding not set forth in this Agreement and the Loan Documents. Neither
this Agreement nor any term hereof may be changed, waived, discharged or terminated, except as
provided in §26.



§24. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS.




     EACH OF THE BORROWER, PARENT, THE AGENT AND THE LENDERS HEREBY WAIVES ITS RIGHT TO A JURY
TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS
AGREEMENT, ANY NOTE OR ANY OF THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR
THEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. THE BORROWER HEREBY WAIVES ANY RIGHT
IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY SPECIAL, INDIRECT OR CONSEQUENTIAL
DAMAGES AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, PUNITIVE OR ANY DAMAGES OTHER THAN, OR IN
ADDITION TO, ACTUAL DAMAGES. EACH OF THE BORROWER AND PARENT (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY LENDER OR THE AGENT HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
LENDER OR THE AGENT WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS
AND (B) ACKNOWLEDGES THAT THE AGENT AND THE LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS TO WHICH THEY ARE PARTIES BY, AMONG OTHER THINGS, THE WAIVERS AND
CERTIFICATIONS CONTAINED IN THIS §24. EACH OF THE BORROWER AND PARENT ACKNOWLEDGES THAT IT HAS HAD
AN OPPORTUNITY TO REVIEW THIS §24 WITH LEGAL COUNSEL AND THAT EACH OF THE BORROWER AND PARENT
AGREES TO THE FOREGOING AS ITS FREE, KNOWING AND VOLUNTARY ACT.



§25. DEALINGS WITH THE BORROWER.




     The Agent, the Lenders and their affiliates may accept deposits from, extend credit to, invest
in, act as trustee under indentures of, serve as financial advisor of, and generally engage in



74









 




any kind of banking, trust or other business with the Borrower, the Guarantors and their
respective Subsidiaries or any of their Affiliates regardless of the capacity of the Agent or the
Lender hereunder. The Lenders acknowledge that, pursuant to such activities, KeyBank or its
Affiliates may receive information regarding such Persons (including information that may be
subject to confidentiality obligations in favor of such Person) and acknowledge that the Agent
shall be under no obligation to provide such information to them.




§26. CONSENTS, AMENDMENTS, WAIVERS, ETC.




     Except as otherwise expressly provided in this Agreement, any consent or approval required or
permitted by this Agreement may be given, and any term of this Agreement or of any other instrument
related hereto or mentioned herein may be amended, and the performance or observance by the
Borrower or the Guarantors of any terms of this Agreement or such other instrument or the
continuance of any Default or Event of Default may be waived (either generally or in a particular
instance and either retroactively or prospectively) with, but only with, the written consent of the
Required Lenders. Notwithstanding the foregoing, none of the following may occur without the
written consent of each Lender: (a) a reduction in the rate of interest on the Notes; (b) an
increase in the amount of the Commitments of the Lenders (except as provided in §17.1); (c) a
forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee
payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender
hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on
the Loan; (f) an extension of the Maturity Date (except as provided in §2.5); (g) a change in the
manner of distribution of any payments to the Lenders or the Agent; (h) the release of the Borrower
or any Guarantor or any material Collateral except as otherwise provided in this Agreement; (i) an
amendment of the definition of Required Lenders or of any requirement for consent by all of the
Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an
advance of the Loan made by the Borrower other than based on its Commitment Percentage; (k) an
amendment to this §26; or (l) an amendment of any provision of this Agreement or the Loan Documents
which requires the approval of all of the Lenders or the Required Lenders to require a lesser
number of Lenders to approve such action. The provisions of §13 may not be amended without the
written consent of the Agent. Any amendment of the Intercreditor Agreement or waiver of the terms
thereof shall require the written consent of the Majority Lenders and the Agent. The Borrower
agrees to enter into such modifications or amendments of this Agreement or the other Loan Documents
as reasonably may be requested by KeyBank in connection with the syndication of the Loan,
provided that no such amendment or modification materially affects or increases any of the
obligations of the Borrower hereunder. No waiver shall extend to or affect any obligation not
expressly waived or impair any right consequent thereon. No course of dealing or delay or omission
on the part of the Agent or any Lender in exercising any right shall operate as a waiver thereof or
otherwise be prejudicial thereto. No notice to or demand upon any of the Borrower or the
Guarantors shall entitle the Borrower or any Guarantor to other or further notice or demand in
similar or other circumstances.



§27. SEVERABILITY.




     The provisions of this Agreement are severable, and if any one clause or provision hereof
shall be held invalid or unenforceable in whole or in part in any jurisdiction, then such
invalidity



75









 




or unenforceability shall affect only such clause or provision, or part thereof, in such
jurisdiction, and shall not in any manner affect such clause or provision in any other
jurisdiction, or any other clause or provision of this Agreement in any jurisdiction.




§28. TIME OF THE ESSENCE.




     Time is of the essence with respect to each and every covenant, agreement and obligation of
the Borrower and the Guarantors under this Agreement and the other Loan Documents.



§29. NO UNWRITTEN AGREEMENTS.




     THE LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. ANY ADDITIONAL TERMS OF THE AGREEMENT
BETWEEN THE PARTIES ARE SET FORTH BELOW.



§30. REPLACEMENT NOTES.




     Upon receipt of evidence reasonably satisfactory to Borrower of the loss, theft, destruction
or mutilation of any Note, and in the case of any such loss, theft or destruction, upon delivery of
an indemnity agreement reasonably satisfactory to Borrower or, in the case of any such mutilation,
upon surrender and cancellation of the applicable Note, Borrower will execute and deliver, in lieu
thereof, a replacement Note, identical in form and substance to the applicable Note and dated as of
the date of the applicable Note and upon such execution and delivery all references in the Loan
Documents to such Note shall be deemed to refer to such replacement Note.



§31. NO THIRD PARTIES BENEFITED.




     This Agreement and the other Loan Documents are made and entered into for the sole protection
and legal benefit of the Borrower, the Lenders, the Agent and the holders of the Hedge Obligations
and their permitted successors and assigns, and no other Person shall be a direct or indirect legal
beneficiary of, or have any direct or indirect cause of action or claim in connection with, this
Agreement or any of the other Loan Documents. All conditions to the performance of the obligations
of the Agent and the Lenders under this Agreement, including the obligation to make Loans, are
imposed solely and exclusively for the benefit of the Agent and the Lenders and no other Person
shall have standing to require satisfaction of such conditions in accordance with their terms or be
entitled to assume that the Agent and the Lenders will refuse to make Loans in the absence of
strict compliance with any or all thereof and no other Person shall, under any circumstances, be
deemed to be a beneficiary of such conditions, any and all of which may be freely waived in whole
or in part by the Agent and the Lenders at any time if in their sole discretion they deem it
desirable to do so. In particular, the Agent and the Lenders make no representations and assume no
obligations as to third parties concerning the quality of the construction by the Borrower or any
of its Subsidiaries of any development or the absence therefrom of defects.



76









 





§32. PATRIOT ACT.




     Each Lender and the Agent (for itself and not on behalf of any Lender) hereby notifies
Borrower and Guarantors that, pursuant to the requirements of the Patriot Act, it is required to
obtain, verify and record information that identifies Borrower, which information includes names
and addresses and other information that will allow such Lender or the Agent, as applicable, to
identify Borrower in accordance with the Patriot Act.



[SIGNATURES BEGIN ON FOLLOWING PAGE]




77









 








     IN
WITNESS WHEREOF, each of the undersigned have caused this Agreement
to be executed by its duly authorized representatives as of the date first set forth above.




	 	 	 	 	 
	 

	 	BORROWER:
	 
	 	 	 	 
	 

	 	GOLDENBOY ACQUISITION CORP., a Wisconsin corporation
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	(SEAL)
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	PARENT:
	 
	 	 	 	 
	 

	 	COGDELL SPENCER, INC., a Maryland corporation
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	(SEAL)






 









 






	 	 	 	 	 
	 

	 	LENDERS:
	 
	 	 	 	 
	 

	 	KEYBANK NATIONAL ASSOCIATION, individually and as Agent
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Address for Notices:
	 
	 	 	 	 
	 

	 	See §18 of Loan Agreement






 









 






	 	 	 	 	 
	 

	 	BANK OF AMERICA, N.A.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name: Scott McClintock

Title: Senior Vice President
	 
	 	 	 	 
	 

	 	Address for Notices:
	 
	 	 	 	 
	 

	 	Bank of America, N.A.

100 N. Tyron Street, NC1-007-11-15

Charlotte, North Carolina 28255

Attn: Scott McClintock

Facsimile: (704) 333-2416






 









 






	 	 	 	 	 
	 

	 	WACHOVIA BANK, NATIONAL ASSOCIATION
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Address for Notices:
	 
	 	 	 	 
	 

	 	Wachovia Bank, National Association

301 South College Street, NC0172

Charlotte, North Carolina 28288

Attn: Rob MacGregor
Facsimile: (704) 715-0065






 









 






	 	 	 	 	 
	 

	 	CITICORP NORTH AMERICA, INC.
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Address for Notices:
	 
	 	 	 	 
	 

	 	Citicorp North America, Inc.

390 Greenwich Street, 1st Floor

New York, New York 10013

Attn: Bryce Hong

Facsimile: (646) 688-2052






 









 






	 	 	 	 	 
	 

	 	BRANCH BANKING AND TRUST COMPANY
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Address for Notices:
	 
	 	 	 	 
	 

	 	Branch Banking and Trust Company

200 South College Street, 2nd Floor

Charlotte, North Carolina 28202

Attn: Wright Uzzell

Facsimile: (704) 954-1038






 









 






	 	 	 	 	 
	 

	 	M&I MARSHALL & ILSLEY BANK
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Address for Notices:
	 
	 	 	 	 
	 

	 	M&I Marshall & Ilsley Bank

One West Main Street

Madison, Wisconsin 53703

Attn: Commercial Banking, Noah Phillips

Facsimile: (608) 283-5713






 









 






EXHIBIT A




FORM OF NOTE




	 	 	 
	$__________________

	 	March ___, 2008






     FOR VALUE RECEIVED, the undersigned, GOLDENBOY ACQUISITION CORP., a Wisconsin corporation
(“Maker”), hereby promises to pay to
__________________
(“Payee”), or order, in accordance
with the terms of that certain Senior Secured Term Loan Agreement, dated as of March 10, 2008, as
from time to time in effect, among Maker, Cogdell Spencer, Inc., KeyBank National Association, for
itself and as Agent, and such other Lenders as may be from time to time named therein (the “Loan
Agreement”), to the extent not sooner paid, on or before the Maturity Date, the principal sum of
____________ ($____________), or such amount as may be advanced by the Payee under the Loan
Agreement as a Loan with daily interest from the date thereof, computed as provided in the Loan
Agreement, on the principal amount hereof from time to time unpaid, at a rate per annum on each
portion of the principal amount which shall at all times be equal to the rate of interest
applicable to such portion in accordance with the Loan Agreement, and with interest on overdue
principal and, to the extent permitted by applicable law, on overdue installments of interest and
late charges at the rates provided in the Loan Agreement. Interest shall be payable on the dates
specified in the Loan Agreement, except that all accrued interest shall be paid at the stated or
accelerated maturity hereof or upon the prepayment in full hereof. Capitalized terms used herein
and not otherwise defined herein shall have the meanings set forth in the Loan Agreement.



     Payments hereunder shall be made to the Agent for the Payee at 127 Public Square, Cleveland,
Ohio 44114-1306, or at such other address as Agent may designate from time to time.



     This Note is one of one or more Notes evidencing borrowings under and is entitled to the
benefits and subject to the provisions of the Loan Agreement. The principal of this Note may be
due and payable in whole or in part prior to the Maturity Date and is subject to mandatory
prepayment in the amounts and under the circumstances set forth in the Loan Agreement, and may be
prepaid in whole or from time to time in part, all as set forth in the Loan Agreement.



     Notwithstanding anything in this Note to the contrary, all agreements between the undersigned
Maker and the Lenders and the Agent, whether now existing or hereafter arising and whether written
or oral, are hereby limited so that in no contingency, whether by reason of acceleration of the
maturity of any of the Obligations or otherwise, shall the interest contracted for, charged or
received by the Lenders exceed the maximum amount permissible under applicable law. If, from any
circumstance whatsoever, interest would otherwise be payable to the Lenders in excess of the
maximum lawful amount, the interest payable to the Lenders shall be reduced to the maximum amount
permitted under applicable law; and if from any circumstance the Lenders shall ever receive
anything of value deemed interest by applicable law in excess of the maximum lawful amount, an
amount equal to any excessive interest shall be applied to the reduction of the principal balance
of the Obligations of the undersigned Maker and to the payment of interest or, if such excessive
interest exceeds the unpaid balance of principal of the Obligations of the undersigned Maker, such
excess shall be refunded to the undersigned



A-1









 




Maker. All interest paid or agreed to be paid to the Lenders shall, to the extent permitted
by applicable law, be amortized, prorated, allocated and spread throughout the full period until
payment in full of the principal of the Obligations of the undersigned Maker (including the period
of any renewal or extension thereof) so that the interest thereon for such full period shall not
exceed the maximum amount permitted by applicable law. This paragraph shall control all agreements
between the undersigned Maker and the Lenders and the Agent.




     In case an Event of Default shall occur, the entire principal amount of this Note may become
or be declared due and payable in the manner and with the effect provided in said Loan Agreement.



     This Note shall, pursuant to New York General Obligations Law Section 5-1401, be governed by
the laws of the State of New York.



     The undersigned Maker and all guarantors and endorsers hereby waive presentment, demand,
notice, protest, notice of intention to accelerate the indebtedness evidenced hereby, notice of
acceleration of the indebtedness evidenced hereby and all other demands and notices in connection
with the delivery, acceptance, performance and enforcement of this Note, except as specifically
otherwise provided in the Loan Agreement, and assent to extensions of time of payment or
forbearance or other indulgence without notice.



A-2









 





     IN WITNESS WHEREOF, the undersigned has by its duly authorized officer executed this Note on
the day and year first above written.



	 	 	 	 	 
	 

	 	GOLDENBOY ACQUISITION CORP., a Wisconsin corporation
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	(SEAL)






A-3









 






EXHIBIT B




FORM OF JOINDER AGREEMENT




     THIS JOINDER AGREEMENT (“Joinder Agreement”) is executed as of ____________,
20___, by
_____________________, a __________________ (“Joining Party”), and delivered to KeyBank
National Association, as Agent, pursuant to §5.5 of the Senior Secured Term Loan Agreement dated as
of March 10, 2008, as from time to time in effect (the “Loan Agreement”), by and among Goldenboy
Acquisition Corp., a Wisconsin corporation (the “Borrower”), Cogdell Spencer, Inc. (“Parent”),
KeyBank National Association, for itself and as Agent, and the other Lenders from time to time
party thereto. Terms used but not defined in this Joinder Agreement shall have the meanings
defined for those terms in the Loan Agreement.



RECITALS




     A. Joining Party is required, pursuant to §5.2 of the Loan Agreement, to become an additional
Subsidiary Guarantor under the Guaranty and the Contribution Agreement.



     B. Joining Party expects to realize direct and indirect benefits as a result of the
availability to Borrower of the credit facilities under the Loan Agreement.



     NOW, THEREFORE, Joining Party agrees as follows:



AGREEMENT




     2. Joinder. By this Joinder Agreement, Joining Party hereby becomes a “Subsidiary
Guarantor” and a “Guarantor” under the Loan Agreement, the Guaranty, and the other Loan Documents
with respect to all the Obligations of Borrower now or hereafter incurred under the Loan Agreement
and the other Loan Documents, and a “Subsidiary Guarantor” under the Contribution Agreement.
Joining Party agrees that Joining Party is and shall be bound by, and hereby assumes, all
representations, warranties, covenants, terms, conditions, duties and waivers applicable to a
Subsidiary Guarantor and a Guarantor under the Loan Agreement, the Guaranty, the other Loan
Documents and the Contribution Agreement.



     3. Representations and Warranties of Joining Party. Joining Party represents and
warrants to Agent that, as of the Effective Date (as defined below), except as disclosed in writing
by Joining Party to Agent on or prior to the date hereof and approved by the Agent in writing
(which disclosures shall be deemed to amend the Schedules and other disclosures delivered as
contemplated in the Loan Agreement), the representations and warranties contained in the Loan
Agreement and the other Loan Documents are true and correct in all material respects as applied to
Joining Party as a Subsidiary Guarantor and a Guarantor on and as of the Effective Date as though
made on that date. As of the Effective Date, all covenants and agreements in the Loan Documents
and the Contribution Agreement of the Subsidiary Guarantors are true and correct with respect to
Joining Party and no Default or Event of Default shall exist or might exist upon the Effective Date
in the event that Joining Party becomes a Subsidiary Guarantor.



B-1









 





     4. Joint and Several. Joining Party hereby agrees that, as of the Effective Date, the
Guaranty and the Contribution Agreement heretofore delivered to the Agent and the Lenders shall be
a joint and several obligation of Joining Party to the same extent as if executed and delivered by
Joining Party, and upon request by Agent, will promptly become a party to the Guaranty and the
Contribution Agreement to confirm such obligation.



     5. Further Assurances. Joining Party agrees to execute and deliver such other
instruments and documents and take such other action, as the Agent may reasonably request, in
connection with the transactions contemplated by this Joinder Agreement.



     6. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACTUAL OBLIGATION
UNDER, AND SHALL, PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1401, BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.



     7. Counterparts. This Agreement may be executed in any number of counterparts which
shall together constitute but one and the same agreement.



     8. The effective date (the “Effective Date”) of this Joinder Agreement is ____________,
20___.



B-2









 





     IN WITNESS WHEREOF, Joining Party has executed this Joinder Agreement under seal as of the day
and year first above written.



	 	 	 	 	 	 	 
	 

	 	 	 	“JOINING PARTY”
	 
	 	 	 	 	 	 
	 

	 	 	 	__________________,
a ____________
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	[SEAL]
	 
	 	 	 	 	 	 
	ACKNOWLEDGED:	 	 	 	 
	 
	 	 	 	 	 	 
	KEYBANK NATIONAL ASSOCIATION, as Agent	 	 	 	 
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Its:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	[Printed Name and Title]	 	 	 	 






B-3









 






EXHIBIT C




FORM OF COMPLIANCE CERTIFICATE




KeyBank National Association, as Agent

1200 Abernathy Road, NE, Suite 1550

Atlanta, Georgia 30328

Attn: Daniel Stegemoeller




Ladies and Gentlemen:




     Reference is made to the Senior Secured Term Loan Agreement dated as of March 10, 2008 (as the
same may hereafter be amended, the “Loan Agreement”) by and among Goldenboy Acquisition Corp. (the
“Borrower”), Codgell Spencer, Inc. (“Parent”), KeyBank National Association for itself and as
Agent, and the other Lenders from time to time party thereto. Terms defined in the Loan Agreement
and not otherwise defined herein are used herein as defined in the Loan Agreement.



     Pursuant to the Loan Agreement, Parent is furnishing to you herewith (or have most recently
furnished to you) the consolidated financial statement of Parent for the fiscal period ended
____________ (the “Balance Sheet Date”). Such financial statements have been prepared in
accordance with GAAP and present fairly the consolidated financial position of Parent at the date
thereof and the results of its operations for the periods covered thereby, subject in the case of
interim statements only to normal year-end audit adjustments.



     This certificate is submitted in compliance with requirements of §2.10(d), §7.4(c) or §10.12
of the Loan Agreement. If this certificate is provided under a provision other than §7.4(c), the
calculations provided below are made using the consolidated financial statement of Parent as of the
Balance Sheet Date adjusted in the best good faith estimate of Borrower to give effect to the
making of a Loan, acquisition or disposition of property or other event that occasions the
preparation of this certificate; and the nature of such event and the estimate of Borrower of its
effects are set forth in reasonable detail in an attachment hereto. The undersigned officer is the
chief financial officer or chief accounting officer of Parent.



     The undersigned representative has caused the provisions of the Loan Documents to be reviewed
and have no knowledge of any Default or Event of Default. (Note: If the signer does have knowledge
of any Default or Event of Default, the form of certificate should be revised to specify the
Default or Event of Default, the nature thereof and the actions taken, being taken or proposed to
be taken by the Borrower with respect thereto.)



     The undersigned is providing the attached information to demonstrate compliance as of the date
hereof with the covenants described in the attachment hereto.



F-1









 





     IN WITNESS WHEREOF, the undersigned has duly executed this Compliance Certificate this ______
day of
____________, 200___.



	 	 	 	 	 
	 

	 	[GOLDENBOY ACQUISITION CORP.][MEA HOLDINGS, INC.,

as successor by merger to Goldenboy Acquisition Corp.],

a Wisconsin corporation
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 





F-2









 






APPENDIX TO COMPLIANCE CERTIFICATE





F-3









 








EXHIBIT D




FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT




     THIS ASSIGNMENT AND ACCEPTANCE AGREEMENT (this “Agreement”)
dated __________________, by and
between __________________
(“Assignor”), and __________________ (“Assignee”).



W I T N E S S E T H:




     WHEREAS, Assignor is a party to that certain Senior Secured Term Loan Agreement dated as of
March 10, 2008 by and among GOLDENBOY ACQUISITION CORP., a Wisconsin corporation (“Borrower”),
Cogdell Spencer, Inc., the other lenders that are or may become a party thereto, and KEYBANK
NATIONAL ASSOCIATION, individually and as Agent (the “Loan Agreement”); and



     WHEREAS, Assignor desires to transfer to Assignee a Commitment under the Loan Agreement and
its rights with respect to the Commitment assigned and its Outstanding Loans with respect thereto;



     NOW, THEREFORE, for and in consideration of the sum of Ten and No/100 Dollars ($10.00) and
other good and valuable considerations, the receipt and sufficiency of which are hereby
acknowledged, Assignor and Assignee hereby agree as follows:



     1. Definitions. Terms defined in the Loan Agreement and used herein without
definition shall have the respective meanings assigned to such terms in the Loan Agreement.



     2. Assignment.



     (a) Subject to the terms and conditions of this Agreement and in consideration of the payment
to be made by Assignee to Assignor pursuant to Paragraph 5 of this Agreement, effective as of the
“Assignment Date” (as defined in Paragraph 7 below), Assignor hereby irrevocably sells, transfers
and assigns to Assignee, without recourse, a portion of its Note in the amount of $____________
representing a
$____________
Commitment, and a ____________ percent (______%) Commitment
Percentage, and a corresponding interest in and to all of the other rights and obligations under
the Loan Agreement and the other Loan Documents relating thereto (the assigned interests being
hereinafter referred to as the “Assigned Interests”), including Assignor’s share of all outstanding
Loans with respect to the Assigned Interests and the right to receive interest and principal on and
all other fees and amounts with respect to the Assigned Interests, all from and after the
Assignment Date, all as if Assignee were an original Lender under and signatory to the Loan
Agreement having a Commitment Percentage equal to the amount of the respective Assigned Interests.



     (b) Assignee, subject to the terms and conditions hereof, hereby assumes all obligations of
Assignor with respect to the Assigned Interests from and after the Assignment Date as if Assignee
were an original Lender under and signatory to the Loan Agreement and the “Intercreditor Agreement”
(as hereinafter defined), which obligations shall include, but shall not be limited to, the
obligation to make Loans to the Borrower with respect to the Assigned



G-1









 




Interests and to indemnify the Agent as provided therein (such obligations, together with all
other obligations set forth in the Loan Agreement and the other Loan Documents are hereinafter
collectively referred to as the “Assigned Obligations”). Assignor shall have no further duties or
obligations with respect to, and shall have no further interest in, the Assigned Obligations or the
Assigned Interests.




     3. Representations and Requests of Assignor.



     (a) Assignor represents and warrants to Assignee (i) that it is legally authorized to, and has
full power and authority to, enter into this Agreement and perform its obligations under this
Agreement; (ii) that as of the date hereof, before giving effect to the assignment contemplated
hereby the principal face amount of Assignor’s Note is
$____________ and the aggregate outstanding
principal balance of the Loans made by it equals $____________, and (iii) that it has forwarded to
the Agent the Note held by Assignor. Assignor makes no representation or warranty, express or
implied, and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Loan Documents or the execution, legality,
validity, enforceability, genuineness or sufficiency of any Loan Document or any other instrument
or document furnished pursuant thereto or in connection with the Loan, the collectability of the
Loans, the continued solvency of the Borrower or the Guarantors or the continued existence,
sufficiency or value of the Collateral or any assets of the Borrower or the Guarantors which may be
realized upon for the repayment of the Loans, or the performance or observance by the Borrower or
the Guarantors of any of their respective obligations under the Loan Documents to which it is a
party or any other instrument or document delivered or executed pursuant thereto or in connection
with the Loan; other than that it is the legal and beneficial owner of, or has the right to assign,
the interests being assigned by it hereunder and that such interests are free and clear of any
adverse claim.



     (b) Assignor requests that the Agent obtain replacement notes for each of Assignor and
Assignee as provided in the Loan Agreement.



     4. Representations of Assignee. Assignee makes and confirms to the Agent, Assignor
and the other Lenders all of the representations, warranties and covenants of a Lender under
Articles 13 and 17 of the Loan Agreement. Without limiting the foregoing, Assignee (a) represents
and warrants that it is legally authorized to, and has full power and authority to, enter into this
Agreement and perform its obligations under this Agreement; (b) confirms that it has received
copies of such documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Agreement; (c) agrees that it has and will, independently
and without reliance upon Assignor, any other Lender or the Agent and based upon such documents and
information as it shall deem appropriate at the time, continue to make its own credit decisions in
evaluating the Loans, the Loan Documents, the creditworthiness of the Borrower and the Guarantors
and the value of the assets of the Borrower and the Guarantors, and taking or not taking action
under the Loan Documents and any intercreditor agreement among the Lenders and the Agent (the
“Intercreditor Agreement”); (d) appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers as are reasonably incidental thereto pursuant to the terms
of the Loan Documents and the Intercreditor Agreement; (e) agrees that, by this Assignment,
Assignee has become a party to and will perform in accordance with their terms all the obligations
which by the terms of the Loan Documents and



G-2









 




the Intercreditor Agreement are required to be performed by it as a Lender; (f) represents and
warrants that Assignee does not control, is not controlled by, is not under common control with and
is otherwise free from influence or control by, the Borrower or any Guarantor, (g) represents and
warrants that Assignee is subject to control, regulation or examination by a state or federal
regulatory agency, (h) agrees that if Assignee is not incorporated under the laws of the United
States of America or any State, it has on or prior to the date hereof delivered to Borrower and
Agent certification as to its exemption (or lack thereof) from deduction or withholding of any
United States federal income taxes and (i) Assignee has a net worth or unfunded commitments as of
the date hereof of not less than $100,000,000.00 unless waived in writing by Borrower and Agent as
required by the Loan Agreement. Assignee agrees that Borrower may rely on the representation
contained in
Section 4(i).




     5. Payments to Assignor. In consideration of the assignment made pursuant to
Paragraph 1 of this Agreement, Assignee agrees to pay to Assignor on the Assignment Date, an amount
equal to
$____________ representing the aggregate principal amount outstanding of the Loans owing
to Assignor under the Loan Agreement and the other Loan Documents with respect to the Assigned
Interests.



     6. Payments by Assignor. Assignor agrees to pay the Agent on the Assignment Date the
registration fee required by §17.2 of the Loan Agreement.



     7. Effectiveness.



     (a) The
effective date for this Agreement shall be
____________ (the “Assignment Date”).
Following the execution of this Agreement, each party hereto shall deliver its duly executed
counterpart hereof to the Agent for acceptance and recording in the Register by the Agent.



     (b) Upon such acceptance and recording and from and after the Assignment Date, (i) Assignee
shall be a party to the Loan Agreement and the Intercreditor Agreement and, to the extent of the
Assigned Interests, have the rights and obligations of a Lender thereunder, and (ii) Assignor
shall, with respect to the Assigned Interests, relinquish its rights and be released from its
obligations under the Loan Agreement and the Intercreditor Agreement.



     (c) Upon such acceptance and recording and from and after the Assignment Date, the Agent shall
make all payments in respect of the rights and interests assigned hereby accruing after the
Assignment Date (including payments of principal, interest, fees and other amounts) to Assignee.



     (d) All outstanding LIBOR Rate Loans shall continue in effect for the remainder of their
applicable Interest Periods and Assignee shall accept the currently effective interest rates on its
Assigned Interest of each LIBOR Rate Loan.



     8. Notices. Assignee specifies as its address for notices and its Lending Office for
all assigned Loans, the offices set forth below:



G-3









 





	 	 	 	 	 	 
	Notice Address:
	 	 	 	 
	 

	 	 
	 

	 

	 	 
	 

	 

	 	 
	 

	 

	 	 
	 

	 	Attn:	 	 
	 

	 	 	 	 
	 

	 	Facsimile:






	 	 	 
	Domestic Lending Office:

	 	Same as above
	 
	 	 
	Eurodollar Lending Office:

	 	Same as above






     9. Payment Instructions. All payments to Assignee under the Loan Agreement shall be
made as provided in the Loan Agreement in accordance with the separate instructions delivered to
Agent.



     10. Governing Law. THIS AGREEMENT IS INTENDED TO TAKE EFFECT AS A SEALED INSTRUMENT
FOR ALL PURPOSES AND TO BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK (WITHOUT REFERENCE TO CONFLICT OF LAWS).



     11. Counterparts. This Agreement may be executed in any number of counterparts which
shall together constitute but one and the same agreement.



     12. Amendments. This Agreement may not be amended, modified or terminated except by
an agreement in writing signed by Assignor and Assignee, and consented to by Agent.



     13. Successors. This Agreement shall inure to the benefit of the parties hereto and
their respective successors and assigns as permitted by the terms of Loan Agreement and the
Intercreditor Agreement.



[signatures on following page]




G-4









 








     IN WITNESS WHEREOF, intending to be legally bound, each of the undersigned has caused this
Agreement to be executed on its behalf by its officers thereunto duly authorized, as of the date
first above written.



	 	 	 	 	 	 	 
	 

	 	 	 	ASSIGNEE:
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	ASSIGNOR:
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	RECEIPT ACKNOWLEDGED AND

ASSIGNMENT CONSENTED TO BY:	 	 	 	 
	 
	 	 	 	 	 	 
	KEYBANK NATIONAL ASSOCIATION, as Agent	 	 	 	 
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	Title:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	CONSENTED TO BY:1	 	 	 	 
	 
	 	 	 	 	 	 
	[GOLDENBOY ACQUISITION CORP.]

[MEA HOLDINGS, INC., as successor by

merger to Goldenboy Acquisition Corp.],

a Wisconsin corporation	 	 	 	 
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	Name:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	Title:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 







 




			
	1	 	Insert to extent required by Credit Agreement.





I-1









 










EXHIBIT E




FORM OF ACKNOWLEDGMENT




L-1









 








SCHEDULE 1




LENDERS AND COMMITMENTS




	 	 	 	 	 	 	 	 	 
	          Name and Address	 	Commitment	 	Commitment Percentage
	 
	 	 	 	 	 	 	 	 
	KeyBank National Association
	 	$	20,000,000.00	 	 	 	20.0	%
	127 Public Square
	 	 	 	 	 	 	 	 
	Cleveland, Ohio 44114-1306
	 	 	 	 	 	 	 	 
	Attention: Dan Stegemoeller
	 	 	 	 	 	 	 	 
	Facsimile: (770) 510-2195
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	LIBOR Lending Office
	 	 	 	 	 	 	 	 
	          Same as above
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Bank of America, N.A.
	 	$	20,000,000.00	 	 	 	20.0	%
	101 S. Tyron Street, NC1-002-33-87
	 	 	 	 	 	 	 	 
	Charlotte, North Carolina 28255
	 	 	 	 	 	 	 	 
	Attention: Don Ward
	 	 	 	 	 	 	 	 
	Facsimile: (704) 333-2416
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	LIBOR Lending Office
	 	 	 	 	 	 	 	 
	          Same as above
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Wachovia Bank, National Association
	 	$	20,000,000.00	 	 	 	20.0	%
	310 S. College Street, NC0172
	 	 	 	 	 	 	 	 
	Charlotte, North Carolina 28288
	 	 	 	 	 	 	 	 
	Attention: Wes Carter
	 	 	 	 	 	 	 	 
	Facsimile: (704) 715-0065
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	LIBOR Lending Office
	 	 	 	 	 	 	 	 
	          Same as above
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Branch Banking and Trust Company
	 	$	20,000,000.00	 	 	 	20.0	%
	200 S. College Street, 2nd Floor
	 	 	 	 	 	 	 	 
	Charlotte, North Carolina 28202
	 	 	 	 	 	 	 	 
	Attention: Joy Benton
	 	 	 	 	 	 	 	 
	Facsimile: (704) 954-1038
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	LIBOR Lending Office
	 	 	 	 	 	 	 	 
	          Same as above
	 	 	 	 	 	 	 	 






L-1









 






	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	M&I Marshall & Ilsley Bank
	 	$	14,000,000.00	 	 	 	14.0	%
	P.O. Box 237
	 	 	 	 	 	 	 	 
	Appleton, Wisconsin 54912-0237
	 	 	 	 	 	 	 	 
	Attention: Loan Servicing
	 	 	 	 	 	 	 	 
	Facsimile: (800) 686-4490
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	LIBOR Lending Office
	 	 	 	 	 	 	 	 
	          Same as above
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Citicorp North America, Inc.
	 	$	6,000,000.00	 	 	 	6.0	%
	2 Penns Way
	 	 	 	 	 	 	 	 
	Newcastle, Delaware 19720
	 	 	 	 	 	 	 	 
	Attention: Maryellen Winkler
	 	 	 	 	 	 	 	 
	Facsimile: (212) 994-0847
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	LIBOR Lending Office
	 	 	 	 	 	 	 	 
	          Same as above
	 	 	 	 	 	 	 	 






L-2









 






SCHEDULE 1.1




SUBSIDIARY GUARANTORS





	1.	 	MEA Holdings, Inc., a Wisconsin corporation

	 
	2.	 	Marshall Erdman & Associates, Inc., a Wisconsin corporation

	 
	3.	 	Marshall Erdman Development, LLC, a Wisconsin limited liability company

	 
	4.	 	MEA 1, Inc., a Wisconsin corporation






Schedule 1.1 — Page 1





 









 








SCHEDULE 6.3




ENCUMBRANCES ON ASSETS




Schedule 6.3 — Page 1





 









 








SCHEDULE 6.7




PENDING LITIGATION




Schedule 6.7 — Page 1





 









 








SCHEDULE 6.16




CERTAIN TRANSACTIONS




Schedule 6.16 — Page 1





 









 








SCHEDULE 6.22




SUBSIDIARIES AND UNCONSOLIDATED AFFILIATES




[see attached organizational chart]




Schedule 6.22 — Page 1






 









 








SCHEDULE 6.23




CONTRACTS, SUBCONTRACTS & PAYMENT AND PERFORMANCE BONDS




Schedule 6.23 — Page 1





 









 








SCHEDULE 6.26




MATERIAL LOAN AGREEMENTS




Schedule 6.26 — Page 1